When Dorvee Does NOT Apply

United States v. Levy, No. 09-2965-cr (2d Cir. July 14, 2010) (found here)

Levy challenged (among other things) the substantive reasonableness of his 360 month sentence for producing and distributing child pornography.  On appeal, the Second Circuit found that his case did "not present the same issues" as in Dorvee, "specifically whether the defendant was likely sexually to assault a child."  Rather, "Levy actually molested a five-year-old girl, bragged about his conduct online, and thereafter not only failed to accept responsibility, but lied under oath about his culpability."  Thus, Levy could not benefit from Dorvee, in which the Second Circuit expressed concern about the reasonableness of child pornography sentences.

Prayers That Did Not Come True: "Vulnerable Victim" Enhancement In Fraud Case Cannot Be Based On Religion Of Victims

United States v. Dupre, Docket Nos. 05-2223-cr (L), 05-2272-cr (CON) (2d Cir. Sept. 6, 2006) (found here)

On appeal, the defendants argued that the district court erred in calculating their advisory Guidelines offense level by imposing a "vulnerable victims" sentence enhancement (pursuant to Section 3A1.1(b) of the Guidelines) partially on the basis of the victims' religion (and apparently their religious beliefs).  The Second Circuit rejected the district court's imposition of that enhancement, finding that "membership in religious groups cannot, standing alone, make victims 'vulnerable' for purposes of the enhancement, even where a fraud involves reliance on religious themes or imagery. . . .  We have no reason to believe that evangelical Christians as a class are 'unusually susceptible' to fraud."