Clarifying the Knowledge-Based Application of the “Vulnerable Victim” Enhancement in Elder-Fraud Sentencings – A Commentary on United States v. McNamara (6th Cir. 2025)

1. Introduction

In United States v. McNamara, the Court of Appeals for the Sixth Circuit confronted a recurring question in federal sentencing: when, and under what evidentiary showing, does the Sentencing Guidelines’ “vulnerable victim” enhancement apply to telecommunication-based frauds targeting the elderly?

McKhaela Katelynn McNamara participated in an $11-million conspiracy that preyed on older Americans through computer pop-ups, spoofed phone calls and impersonation of federal agents. One principal victim (“J.K.”), aged 70, was induced to hand over almost $400,000 in cash on six occasions at a dollar store car park. After pleading guilty to wire-fraud conspiracy, McNamara disputed the district court’s two-level increase under U.S.S.G. § 3A1.1(b)(1), arguing that the Government had not demonstrated that she “knew or should have known” her victims were “vulnerable” within the meaning of the Guideline.

The Sixth Circuit (Chief Judge Sutton writing; Judges Clay and Thapar concurring) affirmed, crystallising several important principles about the enhancement’s scope and the knowledge requirement.

2. Summary of the Judgment

The panel upheld the district court’s factual finding that victim J.K. was “particularly susceptible” to the scam because of age-associated technological inexperience and credulity.
It found ample record evidence that McNamara “knew or should have known” of that susceptibility, a standard that turns on knowledge—not intent to target.
The Sixth Circuit refused de novo review, applying clear-error scrutiny to the mixed question of vulnerability and knowledge.
The court rejected arguments that (i) age alone cannot serve as a proxy for vulnerability (here the court relied on the confluence of age and demonstrated credulous behaviour), and (ii) the case involved a mere Circular “victims were vulnerable because they were defrauded” tautology.
Sentence of 51 months (within the 51–63-month advisory range) was therefore affirmed.

3. Analysis

3.1 Precedents Cited and Their Influence

The opinion is dialogue-rich with prior circuit precedents:

United States v. Aldridge, 98 F.4th 787 (6th Cir. 2024) – recently articulated that § 3A1.1(b) requires only that the defendant knew or should have known of vulnerability, not that she deliberately selected the victim because of it. The panel quotes Aldridge (pp. 797-98) to anchor its statutory construction.
United States v. O’Lear, 90 F.4th 519 (6th Cir. 2024) – sets forth the clear-error standard for fact-bound Guidelines findings. McNamara tried to secure de novo review, but the panel observed that O’Lear forecloses that approach for mixed fact-law questions.
United States v. Lawson, 128 F.4th 243 (4th Cir. 2025) – offered comparative language on schemes “premised on unusual willingness” of victims to trust scammers; the Sixth Circuit borrowed this reasoning to illustrate J.K.’s non-ordinary susceptibility.
United States v. Stokes, 392 F. App’x 362 (6th Cir. 2010) – prior unpublished decision applying the enhancement where elderly persons were defrauded through telemarketing.
United States v. Jackson, 95 F.3d 500 (7th Cir. 1996) – classic pronouncement that vulnerability requires atypical susceptibility “in a way and to a degree not typical of the general population.” The panel quotes Jackson to highlight how J.K.’s repeated capitulations confirmed her vulnerability.
United States v. Curly, 167 F.3d 316 (6th Cir. 1999) – emphasizes enhancement’s knowledge rather than intent trigger.
United States v. Hess, 106 F.4th 1011 (10th Cir. 2024) – defendant’s reliance on Hess (funeral-home body-parts scandal) failed because there grief did not necessarily facilitate fraud, whereas here credulity plainly did.
United States v. Iriri, 825 F.3d 351 (7th Cir. 2016) – cited for the common-sense notion that only an “unusually naïve” person would follow patently suspicious instructions, reinforcing the vulnerability finding.

Through these cases, the panel positions its holding squarely within—yet somewhat clarifies—the national dialogue on elder-fraud sentencing. Where circuits diverge is not on the availability of the enhancement, but on the evidentiary sufficiency showing: McNamara underscores that demonstrable credulity manifested in real time can satisfy the “particular susceptibility” prong, and defendants’ post hoc protestations of ignorance rarely undermine knowledge when the scam’s mechanics reveal vulnerability.

3.2 Legal Reasoning

The court’s reasoning proceeds in two layers:

Victim Vulnerability. To be “vulnerable,” the victim must possess a characteristic rendering the criminal conduct “easier” to accomplish (Guideline cmt. n.2). Age alone is not dispositive; it must intersect with some functional weakness. The panel pointed to J.K.’s (i) limited computer literacy, (ii) blind trust in unseen “agents,” and (iii) repeated compliance with implausible requests as evidence that her advanced age translated into atypical susceptibility.
Defendant’s Knowledge. Section 3A1.1(b)(1) turns on whether the defendant “knew or should have known.” Knowledge is inferred from:
- McNamara’s admission during her plea colloquy that she was “stealing from old people.”
- Her personal observation of J.K. willingly delivering large cash sums in person multiple times.
- The very structure of the scheme, designed around exploiting older victims.
The court therefore concluded that—even absent direct statements of intent to target elderly persons—McNamara subjectively appreciated J.K.’s vulnerability.

3.3 Impact on Future Cases and the Broader Area of Law

The decision supplies several forward-looking guideposts:

Strengthened Elder-Fraud Enforcement. Prosecutors within the Sixth Circuit can more confidently invoke § 3A1.1(b) for internet- and phone-based scams that succeed because of senior citizens’ digital inexperience.
Lower Evidentiary Threshold for Knowledge. Defendants in multi-step fraud schemes who repeatedly interact with elderly victims will find it difficult to escape the “knew or should have known” standard, even without explicit age-targeting directives.
Standard-of-Review Clarification. By reaffirming clear-error review for vulnerability findings, the court discourages appellate attempts to re-weigh proof unless egregious misapprehensions exist.
Cross-Circuit Influence. Although Lawson (4th Cir.) and Jackson (7th Cir.) were merely persuasive, the Sixth Circuit’s reliance on them signals converging doctrinal contours likely to influence sentencing uniformity nationwide.
Defence Strategy Adjustment. Counsel will need granular evidence—e.g., active sophistication of individual elderly victims—to rebut vulnerability claims, rather than generalized age-based arguments.

4. Complex Concepts Simplified

Vulnerable Victim Enhancement (§ 3A1.1(b)). A two-level increase to the offence level under the Sentencing Guidelines when the crime involves a person especially easy to victimize (due, for example, to age, mental condition, or physical disability) and the defendant knew or should have known of that fact.
Offence Level and Guidelines Range. The Guidelines assign numeric values (“levels”) to crimes; adjustments (like § 3A1.1(b)) add or subtract levels. A higher final level produces a higher advisory imprisonment range within the Guidelines sentencing table.
Clear-Error Review. An appellate standard whereby the panel defers to the district judge’s factual determinations unless left with a “definite and firm conviction” that a mistake was made. It is a deferential posture—harder for appellants to overturn.
Knowledge vs. Intent. Knowledge (awareness) means the defendant realized the relevant fact (victim’s vulnerability) or reasonably should have; intent (purpose) would require proof that the defendant selected the victim because of that characteristic. § 3A1.1(b) only needs knowledge.
Plea Colloquy. The in-court dialogue in which a defendant admitting guilt answers questions under oath, often creating factual admissions usable at sentencing and on appeal.

5. Conclusion

United States v. McNamara reinforces, with lucid reasoning, that the “vulnerable victim” enhancement is alive and well as a potent tool in combating elder fraud. Age, coupled with demonstrable credulous behaviour, satisfies the “particular susceptibility” test, and defendants cannot shield themselves by claiming absence of intent to target seniors once knowledge (actual or constructive) is evident.

Practitioners should note two practical takeaways: (1) in elder-fraud prosecutions, the Government may rely on the scheme’s very design and patterns of victim compliance to prove vulnerability and knowledge, and (2) the clear-error standard renders appellate challenges steep unless the district court ignored or misread salient facts.

Beyond its immediate context, McNamara situates the Sixth Circuit within a growing national consensus treating technological unsophistication of elderly victims as a paradigmatic vulnerability in the digital age. Sentencing courts will likely cite this opinion when confronted with similar “tech-support” or “grandparent” scams, ensuring that perpetrators face appropriately enhanced penalties commensurate with the particular harm inflicted upon one of society’s most susceptible demographics.