United States v. Howard Hershkowitz, 968 F.2d 1503 (2d Cir. 1992). · Go Syfert
United States v. Howard Hershkowitz, 968 F.2d 1503 (2d Cir. 1992). Cases Citing This Book View Copy Cite
34 citation events (11 in the last 25 years) across 9 distinct courts.
Strongest positive: United States v. Connearney (ca2, 2026-05-28)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 23 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Connearney
2d Cir. · 2026 · confidence medium
This Court has held that “Section 3A1.1(b) does not require that the defendant select the victim because of his or her vulnerability – it is sufficient that he knew or should have known of this quality when deciding to go ahead with the crime.” United States v. McCall, 174 F.3d 47, 50 (2d Cir. 1998) (applying identically worded version of § 3A1.1(b)(1) in 1998 Guidelines Manual). 1 This enhancement reflects “the public interest in more severely punishing those whose choice of victim demonstrates an extra measure of criminal depravity.” United States v. Hershkowitz, 968 F.2d 1503,150…
discussed Cited as authority (rule) United States v. Adekunle Adeolu
3rd Cir. · 2016 · confidence medium
As the Second Circuit has explained, the interest in punishing a defendant’s depravity “is present regardless of whether a defendant who targets a vulnerable victim is ultimately successful; the ‘choice of victim demonstrates an extra measure of criminal depravity’ in either case.” Kimber, 777 F.3d at 564 (quoting United States v. Hershkowitz, 968 F.2d 1503, 1505 (2d Cir. 1992)).
discussed Cited as authority (rule) United States v. Kimber
2d Cir. · 2015 · confidence medium
The adjustment “reflect[s] the 11 public interest in more severely punishing those whose choice of victim 12 demonstrates an extra measure of criminal depravity.” United States v. 13 Hershkowitz, 968 F.2d 1503, 1505 (2d Cir. 1992).
discussed Cited as authority (rule) United States v. Kimber
2d Cir. · 2015 · confidence medium
The adjustment “reflects] the public interest in more severely punishing those whose choice of victim demonstrates an extra measure of criminal depravity.” United States v. Hershkowitz, 968 F.2d 1503, 1505 (2d Cir.1992).
discussed Cited as authority (rule) United States v. Giordano
2d Cir. · 2006 · confidence medium
The 2Hl.l(b) offense characteristic vindicates a distinct interest, namely the “compelling public interest in deterring and adequately punishing those who violate civil rights under color of law,” and does not preclude separate enhancements intending to capture “a victim’s increased vulnerability to [the] defendant’s illegal conduct.” United States v. Hershkowitz, 968 F.2d 1503, 1505 (2d Cir.1992) (so holding with respect to predecessor adjustment under U.S.S.G. 2H1.4 for offenses committed under actual or purported legal authority); see also United States v. Volpe, 224 F.3d 72, 76…
discussed Cited as authority (rule) United States v. Verbickas (2×)
10th Cir. · 2006 · confidence medium
See U.S.S.G. § 3A1.1; United States v. Lambright, 320 F.3d 517, 518 (5th Cir.2003) (inmate who was completely dependent on correctional officers for care, was locked in cell, and was unable to protect himself from assault was vulnerable victim); United States v. Hershkowitz, 968 F.2d 1503, 1504-06 (2d Cir.1992) (inmate beaten while surrounded by correctional officers was vulnerable victim).
discussed Cited as authority (rule) United States v. Lambright
5th Cir. · 2003 · confidence medium
We noted that the victim “could not defend herself against an assault, and could not flee from harm” and that “[the defendant] took advantage of this restraint and the particular vulnerability of the victim.” Id.; see also United States v. Tapia, 59 F.3d 1137, 1143 (11th Cir.1995) (incarcerated government informant attacked by fellow inmates was vulnerable victim under § 3A1.1; court found that informant “was particularly vulnera *519 ble by virtue of his incarceration with [the defendants] and his inability to escape”); United States v. Hershkowitz, 968 F.2d 1503, 1505-06 (2d Cir…
discussed Cited as authority (rule) United States v. Sangemino
S.D.N.Y. · 2001 · confidence medium
U.S. Sentencing Guidelines Manual § 3Al.l(b) (1997). 5 The enhancement “re-flectes] the public interest in more severely punishing those whose choice of victim demonstrates an ‘extra measure of criminal depravity.’ ” United States v. Hershkowitz, 968 F.2d 1503, 1505 (2d Cir.1992) (quoting United States v. Paige, 923 F.2d 112, 113 (8th Cir.1991)).
discussed Cited as authority (rule) United States v. Justin A. Volpe
2d Cir. · 2000 · signal: cf. · confidence medium
Cf. United States v. Hershkowitz, 968 F.2d 1503, 1505 (2d Cir.1992) (“Section 2H1.4 [now found in substance at § 2Hl.l(b)(l)(B) ] plainly does not incorporate a victim’s increased vulnerability to defendant’s illegal conduct — due to factors such as his status as a detainee and the presence of a defendant’s fellow officers — in setting the offense level.”).
discussed Cited as authority (rule) United States v. Bruder
E.D.N.Y · 2000 · confidence medium
Volpe II, 78 F.Supp.2d at 85-86 , citing United States v. Rosario, 7 F.3d 319, 321 (2d Cir.1993) (§ 3A1.3 adjustment does not constitute double counting “as long as restraint is not an element of the primary offense for which the defendant is being sentenced”); United States v. Hershkowitz, 968 F.2d 1503, 1505 (2d Cir.1992) (“that a defendant is acting under color of law does not necessarily contemplate a victim who is in custody and under defendant’s control”); United States v. Clayton, 172 F.3d 347, 353 (5th Cir.1999) (lawful restraint of victim by police is “aggravating factor …
discussed Cited as authority (rule) United States v. Volpe
E.D.N.Y · 1999 · confidence medium
Cf. United States v. Rosario, 7 F.3d 319, 321 (2d Cir.1993) (§ 3A1.3 adjustment does not constitute double counting “as long as restraint is not an element of the primary offense for which the defendant is being sentenced”); United States v. Hershkowitz, 968 F.2d 1503, 1505 (2d Cir.1992) (“that a defendant is acting under color of law does not necessarily contemplate a victim who is in custody and under defendant’s control”); Clayton, 172 F.3d at 353 (lawful restraint of victim by police is “aggravating factor that intensifies the wilfulness, the inexcusableness and reprehensiblen…
discussed Cited as authority (rule) United States v. Yehuda P. Friedlander
9th Cir. · 1997 · confidence medium
At 896; see also United States v. Haggard, 41 F.3d 1320, 1327 (9th Cir.1994) (section 3A1.1 accounts for the defendant's choice of victims and allows extra punishment for defendants that prey on unusually vulnerable victims); United States v. Hershkowitz, 968 F.2d 1503, 1505-06 (2d Cir.1992) (vulnerable victim enhancement not impermissible double counting because not every civil rights violation involves a victim who is "particularly susceptible to the criminal conduct"). 13 The district court made numerous findings of fact in this case: The offense took place on an airplane; the female victim…
discussed Cited as authority (rule) United States of America, Appellee-Cross-Appellant v. Domenico Cefalu, Appellant-Cross-Appellee
2d Cir. · 1996 · confidence medium
See United States v. Mucciante, 21 F.3d 1228, 1237 (2d Cir.) (sentencing legal issues reviewed de novo), cert. denied, - U.S. -, 115 S.Ct. 361 , 130 L.Ed.2d 315 (1994); United States v. Hershkowitz, 968 F.2d 1503, 1505 (2d Cir.1992) (“Because appellant does not contest the district court's findings of fact, but rather its interpretation of the Sentencing Guidelines, our review is de novo."); see also United States v. Lambert, 994 F.2d 1088, 1091 (4th Cir.1993) ("We review challenges to the district court’s guideline selection de novo.”).
cited Cited as authority (rule) United States v. Richard J. Borst
2d Cir. · 1995 · confidence medium
United States v. Hershkowitz, 968 F.2d 1503, 1506 (2d Cir.1992).
discussed Cited as authority (rule) United States v. Ram Singh
4th Cir. · 1995 · confidence medium
See United States v. Bengali, 11 F.3d 1207, 1212 (4th Cir.1993) (finding that recent immigrant was susceptible to extortionist’s criminal plot due to his naivete about American customs), cert. denied, — U.S. —, 114 S.Ct. 1853 , 128 L.Ed.2d 477 (1994); United States v. Lallemand, 989 F.2d 936, 939-40 (7th Cir.1993) (finding that married homosexuals may be a "particularly susceptible subgroup of blackmail victims”); United States v. Hershkowitz, 968 F.2d 1503, 1505-06 (2nd Cir.1992) (finding that a detainee attacked by a detention officer in prison was an unusually vulnerable victim in r…
discussed Cited as authority (rule) United States v. Miller (2×)
E.D. Pa. · 1994 · confidence medium
United States v. Hershkowitz, 968 F.2d 1503, 1506 (2d Cir. 1992).
cited Cited "see" United States v. Gregory Checora, Warrenell Cuch, Bobby Redcap, and Reuben Cuch, Jr.
10th Cir. · 1999 · signal: see · confidence high
See United States v. Hershkowitz, 968 F.2d 1503, 1506 (2d Cir.1992).
cited Cited "see" United States v. Checora
10th Cir. · 1999 · signal: see · confidence high
See United States v. Hershkowitz, 968 F.2d 1503, 1506 (2d Cir. 1992).
discussed Cited "see, e.g." United States v. Hernan Enrique Burgos
5th Cir. · 1998 · signal: see also · confidence medium
United States v. Cruz, 106 F.3d 1134, 1138-39 (3rd Cir.1997); see also United States v. Hershkowitz, 968 F.2d 1503, 1506 (2d Cir.1992) (declining to impose a specific targeting requirement); United States v. O'Brien, 50 F.3d 751, 755 (9th Cir.1995) (same); United States v. Gill, 99 F.3d 484, 488 (1st Cir.1996) (holding in a post-amendment case that the pre-amendment guideline did not contain a targeting requirement).
discussed Cited "see, e.g." United States v. Tissnolthtos
10th Cir. · 1997 · signal: see also · confidence medium
See United States v. Coates, 996 F.2d 939, 942 (8th Cir. 1993) 1 The presentence report documents that at the time of the offense defendant was 32 years old, in good health, 5 feet 8 inches tall, 180 pounds, and had a history of arrests for violent alcohol-related offenses. -4- (noting that vulnerable victim enhancement is permissible “in cases . . . where the defendant chose the particular victim for his age, his mental condition, [or] his physical stature compared to that of the defendant.” (quotation omitted)); see also United States v. Hershkowitz, 968 F.2d 1503, 1506 (2d Cir. 1992) (�…
discussed Cited "see, e.g." United States v. Evan Ray Tissnolthtos
10th Cir. · 1997 · signal: see also · confidence medium
See United States v. Coates, 996 F.2d 939, 942 (8th Cir.1993) (noting that vulnerable victim enhancement is permissible “in cases ... where the defendant chose the particular victim for his age, his mental condition, [or] his physical stature compared to that of the defendant.” (quotation omitted)); see also United States v. Hershkowitz, 968 F.2d 1503, 1506 (2d Cir.1992) (“While the focus must remain on the victim’s individual vulnerability, the totality of the circumstances, including the status of the victim and the nature of the crime, must be taken into account in determining the a…
discussed Cited "see, e.g." United States v. Douglas Malcolm Garner
4th Cir. · 1993 · signal: see also · confidence medium
See United States v. Skillman, 922 F.2d 1370, 1377 (9th Cir. 1990) (race of victims, plus fact that they lived in a predominantly white neighborhood, was sufficient to support enhancement in cross burning case); United States v. Salyer, 893 F.2d 113, 116 (6th Cir. 1989) (race of victim plus historical connotations associated with cross burning sufficient to merit enhancement); see also United States v. Hershkowitz, 968 F.2d 1503, 1505 (2d Cir. 1992) (in determining whether to impose enhancement, court is to consider the totality of the circumstances, including the nature of the crime). 9 In ad…
discussed Cited "see, e.g." UNITED STATES OF AMERICA v. HERNAN ENRIQUE BURGOS
unknown court · signal: see also · confidence medium
United States v. Cruz, 106 F.3d 1134, 1138-39 (3rd Cir. 1997); see also United States v. Hershkowitz, 968 F.2d 1503, 1506 (2d Cir. 1992)(declining to impose a specific targeting requirement); United States v. O’Brien, 50 F.3d 751, 755 (9th Cir. 1995)(same); United States v. Gill, 99 F.3d 484, 488 (1st Cir. 1996)(holding in a post-amendment case that the pre-amendment guideline did not contain a targeting requirement).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Howard HERSHKOWITZ, Defendant-Appellant
1112, Docket 91-1700.
Court of Appeals for the Second Circuit.
Jun 30, 1992.
968 F.2d 1503
David Cooper, New York City, for defendant-appellant., Gabriel W. Gorenstein, Asst. U.S. Atty., S.D.N.Y. (Otto G. Obermaier, U.S. Atty., Christopher P. Reynolds, Daniel C. Rich-man, Asst. U.S. Attys., New York City, of counsel), for appellee.
Newman, Cardamone, Sand.
Cited by 27 opinions  |  Published
CARDAMONE, Circuit Judge:

The issue on this appeal involving an assault by a detention officer is whether a prisoner may be a vulnerable victim of a criminal act done under color of law for purposes of the Sentencing Guidelines.[*1504] The Sentencing Guidelines pinpoint the plight of the vulnerable victim, and increase by two levels the sentence of a defendant who knew or should have known the victim was particularly susceptible to his criminal conduct. It is not unusual in a prison setting for guards to incur the animosity of prisoners in their keep, but when a detention officer, stung by a show of hostility, attacks a captive in his custody, the latter is basically defenseless, has no one to whom he can throw out a life-line, and is therefore a vulnerable victim.

I

On July 6, 1990 defendant Howard Hershkowitz was employed as a detention enforcement officer at the Immigration and Naturalization Service’s (INS) Manhattan detention facility. Edward Campbell was a detainee at the facility awaiting deportation. On that day female detainees were taken into the men’s detention area to use the only available shower facilities. Observing the women through a glass partition, Campbell pounded on it to attract their attention. When several officers including defendant told him to stop, Campbell desisted but exchanged some “words” with the officers who had reprimanded him.

When Campbell continued to act in an agitated manner, a supervisor was summoned and decided that Campbell should be removed to a separate area where agitated detainees were held until they were able to “calm down.” Defendant and three other detention officers escorted the detainee from his cell. While enroute to the “cooling-off” area, Hershkowitz grabbed Campbell by the hair and slapped him stating “This will teach you to disrespect me in front of sixty others, you Jamaican bastard.” Once the officers placed him in the holding cell, defendant again assaulted Campbell, punching him in the face, chest, and stomach. The prisoner — who did not resist during either of these assaults — sustained a cut over his eyebrow as a result of this attack. The other officers made no attempt to intervene or to restrain their fellow officer.

Upon being told to submit a written report regarding this incident, defendant and the three other officers submitted statements claiming that Campbell had resisted being taken from his cell to the “cooling off” area and had to be subdued. Subsequent internal investigations revealed the falsity of this report. As a result Hersh-kowitz was charged with assaulting a prisoner in violation of 18 U.S.C. §§ 242 and 2, and submitting a false statement to the INS in order to conceal the assault, in violation of 18 U.S.C. § 1001. On June 12, 1991 he pled guilty to the assault charge. The false statement charge was later dismissed pursuant to the plea agreement.

In its Presentence Report the Probation Department calculated appellant’s base offense level at 12. This was determined by using the provision in the United States Sentencing Commission’s Guidelines Manual (Nov.1991) [1] (U.S.S.G.) applicable to an 18 U.S.C. § 242 offense, U.S.S.G. § 2H1.4(a)(2), which provides for a base offense level of 6 plus the offense level for the underlying offense, in this case minor assault, which is 6. U.S.S.G. § 2A2.3(a)(1). The Probation Department did not recommend an upward adjustment based on the vulnerability of the victim, but did recommend an upward adjustment of two levels for obstruction of justice, which the district court declined to impose. It further recommended a two level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a).

At sentencing on November 22, 1991 the government urged that a vulnerable victim enhancement pursuant to § 3A1.1 of the Guidelines should be imposed because Campbell’s status as a detainee rendered him particularly susceptible to appellant’s illegal assault. Hershkowitz challenged this enhancement asserting that Campbell’s status as a victim was already factored into the offense level for a civil rights violation committed by an official acting under color of law. The sentencing court agreed with the government and ruled that a two level vulnerable victim enhancement was appro[*1505] priate. The court also decided that defendant was entitled to a two level reduction for acceptance of responsibility. This resulted in a total offense level of 12. The court thereupon imposed a sentence of ten months imprisonment, five of which were to be served by home detention, the minimum sentence permitted under the Guidelines. Pursuant to the plea agreement, the sentencing court also made it a condition of Hershkowitz’ sentence that he neither seek nor obtain employment with any law enforcement or corrections agency.

II

The sole issue on appeal is whether the sentencing court properly applied a two level enhancement on the basis of the vulnerability of the victim under U.S.S.G. § 3A1.1, that provides for such enhancement if:

the defendant knew or should have known that [the] victim of the offense was unusually vulnerable due to age, physical or mental condition, or that [the] victim was otherwise particularly susceptible to the criminal conduct.

Because appellant does not contest the district court’s findings of fact, but rather its interpretation of the Sentencing Guidelines, our review is de novo. See United States v. Castagnet, 936 F.2d 57, 59 (2d Cir.1991); United States v. Lara, 905 F.2d 599, 602 (2d Cir.1990).

Hershkowitz contends that the district court erred in applying U.S.S.G. § 3A1.1 since the vulnerability of the detainee was merely a result of Hershkowitz’s status as a guard, a factor already accounted for in the U.S.S.G. § 2H1.4 calculation applicable to a violation of civil rights under color of law. The Commentary to § 3A1.1 states a vulnerable victim adjustment should not be made “if the [underlying] offense guideline specifically incorporates” the factor upon which a finding of unusual vulnerability is predicated. U.S.S.G. § 3A1.1, comment. (n.2). Thus, defendant argues, the sentencing court engaged in impermissible double counting since Campbell’s vulnerability was a factor specifically incorporated into the offense level under § 2H1.4.

Defendant misconstrues the source of Campbell’s vulnerability. The basis for concluding that he was particularly susceptible to Hershkowitz’s criminal conduct was his status as a prisoner in a detention facility, in the custody of, and surrounded by, four guards when the assault occurred. These considerations are distinct from and in addition to the fact that defendant’s actions were taken under color of law. In other words, that a defendant is acting under color of law does not necessarily contemplate a victim who is in custody and under defendant’s control. Nor does acting under color of law presuppose that the victim will be surrounded by defendant's fellow law enforcement officers, whose presence increases the coercive nature of the encounter. These are the factors the district court found, correctly we believe, rendered Campbell unusually vulnerable to appellant’s attack under U.S.S.G. § 3A1.1.

Consideration of these factors did not lead to an impermissible enhancement under the Sentencing Guidelines, as illustrated by the relevant provisions’ distinct factual bases and purposes. The Commentary to U.S.S.G. § 2H1.4 explains that the increased offense level for an “offense [committed] under actual or purported legal authority” reflects the “compelling public interest in deterring and adequately punishing those who violate civil rights under color of law.” U.S.S.G. § 2H1.4, comment, (backg’d.). In contrast, the vulnerable victim adjustment under § 3A1.1 applies to a broad range of circumstances “where an unusually vulnerable victim is made a target of criminal activity by the defendant,” U.S.S.G. § 3A1.1, comment, (n.l), reflecting the public interest in more severely punishing those whose choice of victim demonstrates an “extra measure of criminal depravity.” United States v. Paige, 923 F.2d 112, 113 (8th Cir.1991). These sections address independent sentencing considerations. Section-2H1.4 plainly does not incorporate a victim’s increased vulnerability to defendant’s illegal conduct — due to factors such as his status as a detainee and the presence of a defendant’s fellow officers — in setting the offense level. Consideration of these factors did not lead to impermissible double counting. See United States v. Altman, 901 F.2d 1161, 1165[*1506] (2d Cir.1990) (where Guidelines provision does not incorporate victim’s particular vulnerability, vulnerable victim adjustment proper); United States v. Salyer, 893 F.2d 113, 115-16 (6th Cir.1989) (§ 3A1.1 enhancement due to race of victim of cross-burning offense appropriate; Guideline for conspiracy to interfere with civil rights does not presuppose that victim will be member of racial minority group).

Defendant’s assertion that a § 3A1.1 adjustment can only be premised on factors “inherent” in the victim — for example, age or physical condition — that are likely to make that person particularly susceptible to the illegal conduct is also without merit. Although listing such factors as examples tending to show vulnerability, the section nonetheless specifically provides for enhancement in cases where “a victim was otherwise particularly susceptible to the criminal conduct,” without limitation as to the reasons for such vulnerability. While the focus must remain on the victim’s individual vulnerability, see United States v. Smith, 930 F.2d 1450, 1455 (10th Cir.), cert. denied, - U.S. -, 112 S.Ct. 225, 116 L.Ed.2d 182 (1991), the totality of the circumstances, including the status of the victim and the nature of the crime, must be taken into account in determining the applicability of the vulnerable victim enhancement. Thus, the sentencing court properly considered the victim’s status as a detainee and the presence of other officers at the time of the attack in applying § 3A1.1. See United States v. Long, 935 F.2d 1207, 1212 (11th Cir.1991) (totality of factors, including isolated location of victim’s home, racial isolation, and fact that crime occurred at night, justified application of § 3A1.1); Salyer, 893 F.2d at 117 (same).

Hershkowitz’s final contention, that the enhancement was improper because he had not “specifically sought out” the victim because of his unusual susceptibility, is similarly unavailing. By its own terms, § 3A1.1 governs cases where the defendant “knew or should have known” of the victim’s unusual vulnerability. It is of no consequence therefore whether Hershkowitz actually was conscious of Campbell’s increased vulnerability when he assaulted him in the corridor and later in the holding cell. See Salyer, 893 F.2d at 117. It should have been apparent to appellant, as a detention enforcement officer, that Campbell was not in a position to resist his illegal assault. This is especially true as the assault took place in the presence of three other officers who, as the district court observed, the appellant could have anticipated would very likely have sided with their brother officer. Under the circumstances, appellant knew or should have known that the victim was particularly susceptible to his illegal assault. Consequently, the § 3A1.1 enhancement was properly imposed.

Ill

The judgment of the district court is affirmed.

1

. Although appellant's offense conduct occurred in July of 1990, the applicable Guidelines are those in effect at the time of sentencing in November of 1991. See United States v. Lara, 905 F.2d 599, 602 (2d Cir.1990).