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Appeals from the United States District Court for the Middle District of Louisiana.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Frank Phillip Cihlar, Esq., Senior Counsel, Alexander Patrick Robbins, U.S. Department of Justice, Tax Division, Appellate Section, Washington, DC; Gregory Victor Davis, Attorney, U.S. Department of Justice, Tax Division, Washington, DC; Helina S. Dayries, Alan A. Stevens, Assistant U.S. Attorneys, U.S. Attorney's Office, Middle District of Louisiana, Baton Rouge, LA.
For ANGELA MYERS, Defendant - Appellant: Chester James Rothkamm, Jr., Counsel, Rothkamm Law Firm, Baton Rouge, LA.
Before STEWART, Chief Judge, and BENAVIDES and OWEN, Circuit Judges.
CARL E. STEWART, Chief Judge:
Angela Myers was charged with and convicted of several counts of identify-theft-related crimes, including signing false tax returns. She was sentenced to 132 months imprisonment, due in part to a six-level enhancement for 250 or more victims and a two-level enhancement for vulnerable victims. Myers appeals the application of those enhancements: the six-level enhancement because she argues that an Ex Post Facto Clause violation occurred wherein the sentencing guidelines effective at the time of the crime would not have characterized many of the individuals as " victims," and the two-level enhancement because she contests whether she knew or should have known of the vulnerability of the victims. Because we agree that an Ex Post Facto Clause violation occurred, we VACATE the sentence and REMAND for resentencing. Further, the district court did not err in applying the vulnerable victim enhancement.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
Angela Myers owned Angela's Tax Service from 2007 until 2012, through which she filed fraudulent tax returns for over 285 persons. Myers repeatedly obtained means of identification of individuals, prepared false tax returns without the consent of these individuals, and kept the refunds for herself. Myers obtained about 100 of the names, social security numbers, and other identifying information for these persons from Clarissa Ayo. Ayo and Myers had known each other for several years. Ayo worked for a nursing home and, after speaking with Myers, Ayo gave Myers the roster of the nursing home residents. Myers subsequently used the identities of the nursing home residents to file false tax returns. Because the nursing home residents would not have filed tax returns otherwise, they did not have any pecuniary loss, and the only party arguably to suffer pecuniary loss was the IRS.
B. Procedural Background
Myers was indicted for nine counts of making false, fictitious, or fraudulent claims, five counts of wire fraud, five counts of aggravated identity theft, and two counts of filing a false ...