United States v. Nielsen

• Decision Date: 12 September 2012
• Docket Number: No. 11–30189.,11–30189.
• Citation: 694 F.3d 1032
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. William Richard NIELSEN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

694 F.3d 1032

2012 Daily Journal D.A.R. 12,894

UNITED STATES of America, Plaintiff–Appellee,

v.William Richard NIELSEN, Defendant–Appellant.

No. 11–30189.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 10, 2012.

Filed Sept. 12, 2012.

Cyndee L. Peterson, Assistant United States Attorney, Missoula, MT, for the plaintiff-appellee.

Michael Donahoe, Senior Litigator, Federal Defenders of Montana, Helena, MT, for the defendant-appellant.

Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding. DC No. CR 11–008 DWM.

Before: DOROTHY W. NELSON, A. WALLACE TASHIMA, and CONSUELO M. CALLAHAN, Circuit Judges.

Opinion by Judge TASHIMA; Dissent by Judge CALLAHAN.

OPINION

TASHIMA, Circuit Judge:

William Nielsen appeals the sentence imposed following his guilty plea to coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b). Nielsen contends that the district court erred when it calculated the Sentencing Guidelines range for his offense. Specifically, Nielsen contends that the district court erred in imposing a two-level upward adjustment pursuant to the “vulnerable victim” provision of U.S.S.G. § 3A1.1. He also contends that the district court should not have applied a “repeat and dangerous sex offender” enhancement pursuant to U.S.S.G. § 4B1.5(a), on the basis of his adjudication as a delinquent youth. We have jurisdiction pursuant to 28 U.S.C. § 1291. We vacate Nielsen's sentence and remand for resentencing.

I. BACKGROUND

A. Factual Background

In December 2010, Nielsen began communicating with A.J., a 12–year–old girl, ¹ on an adults-only sex chat line. The two exchanged phone numbers and engaged in phone sex and “sexting.” Nielsen told A.J. that he could provide her with drugs and invited her to visit him in Montana. A.J. purchased a Greyhound bus ticket to visit Nielsen, using money she took from her parents. Before she left Wyoming, she informed Nielsen of her age. He told her that he was already a registered sex offender.

When A.J. arrived by bus in Montana, Nielsen met her at the station and brought her back to his apartment, where he gave her marijuana. Over the next four days, he had sex with A.J. numerous times, engaging her in bondage and sadomasochistic activity. While she was at Nielsen's apartment, A.J. had full use of her phone, which she used to send text messages to her friends and to Nielsen while he was out of the apartment. After four days, A.J.'s parents, who were divorced, tracked her to Nielsen's apartment and retrieved her.

Before meeting Nielsen, A.J. had used drugs and engaged in sexual conduct with older men. She described herself to police as mature for her age. In order to access the adults-only chat line where she met Nielsen, A.J. misrepresented her age.

B. Procedural Background

In January 2011, Nielsen pled guilty to coercion and enticement of a minor, a violation of 18 U.S.C. § 2422(b). The district court applied a two-level upward adjustment to Nielsen's offense level pursuant to U.S.S.G. § 3A1.1, based on its conclusion that Nielsen knew or should have known that A.J. was unusually vulnerable as compared to other minors. The court also applied a “repeat and dangerous sex offender” enhancement, based on its conclusion that Nielsen's juvenile adjudication for sexual assault qualified as a prior “sex offense conviction” within the meaning of U.S.S.G. § 4B1.5(a).

Nielsen objected to the applications of § 3A1.1 and § 4B1.5(a); the district court overruled both objections. Based on the district court's calculations, the Guidelines range for Nielsen's offense was 235 to 293 months in prison. The court sentenced Nielsen to an above-Guidelines sentence of 480 months, as requested by the government. Nielsen contends that the length of his sentence is substantively unreasonable.

II. STANDARD OF REVIEW

We review the district court's construction and interpretation of the Sentencing Guidelines de novo. United States v. Holt, 510 F.3d 1007, 1010 (9th Cir.2007); United States v. Allen, 153 F.3d 1037, 1040 (9th Cir.1998). We review the court's factual findings for clear error. Holt, 510 F.3d at 1010.

III. DISCUSSION

A. Vulnerable Victim Adjustment

The Sentencing Guidelines provide for a two-level upward adjustment to a defendant's offense level “[i]f the defendant knew or should have known that a victim of the offense was a vulnerable victim....” U.S.S.G. § 3A1.1(b). A “vulnerable victim” is a person 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 cmt. n.2.

A victim is “unusually vulnerable” when she is “less able to resist than the typical victim of the offense of conviction.” United States v. Wetchie, 207 F.3d 632, 634 (9th Cir.2000); see also United States v. Luca, 183 F.3d 1018, 1027 (9th Cir.1999) (stating that the district court must point to facts that made the victim “less able to defend [herself] than a typical victim”).² “[I]t is not enough to support a finding of particular susceptibility under § 3A1.1 that the victim[ ] [is] more likely than other members of the general population to become a victim to the particular crime at issue.” United States v. Castellanos, 81 F.3d 108, 110 (9th Cir.1996). As we explained in Castellanos:

The reason for this is that criminals will always tend to target their victims with an eye toward success in the criminal endeavor. Thus, the chosen victims are usually more susceptible than the general population to the criminal conduct.... But all defendants targeting such victims do not necessarily merit a sentence enhancement under § 3A1.1. Otherwise, all but the most unthinking of criminal defendants would be candidates for upward adjustments under § 3A1.1.

Id. at 110–11.

Therefore, “[i]f the factor that makes the victim vulnerable is not ‘unusual’ for victims of the offense, the § 3A1.1(b) enhancement is not permitted.” United States v. Castaneda, 239 F.3d 978, 981 (9th Cir.2001); see also United States v. Williams, 291 F.3d 1180, 1195–96 (9th Cir.2002), overruled on other grounds by United States v. Gonzales, 506 F.3d 940 (9th Cir.2007) (en banc). Similarly, application of the “vulnerable victim” adjustment is not appropriate “if the factor that makes the person a vulnerable victim is incorporated in the offense guideline.” U.S.S.G. § 3A1.1 cmt. n.2. Here, it would have been inappropriate for the district court to apply § 3A1.1 on the basis of A.J.'s minority alone; “although any victim of abusive sexual contact with a minor might be described as vulnerable on account of her minority, her age does not make her any more vulnerable than other victims of this offense.” Wetchie, 207 F.3d at 634 n. 4. The district court clearly stated, however, that it was not A.J.'s age, but other factors taken in the context of her age, that made her a vulnerable victim.

At Nielsen's sentencing, the district court stated that it was a “very difficult question” whether § 3A1.1 applied. Comparing A.J. to other minors, the district court noted that there was a reasonable argument that A.J. was “unusually precocious” rather than unusually vulnerable. Nonetheless, the court concluded that § 3A1.1 applied because A.J. came from “a broken home” (her parents were divorced); she was active on a sex chat line; she was “destitute or bored”; she was sexually active; and she was interested in marijuana.

Nielsen argues that the district court's findings are not supported by the evidence in the record. We need not decide whether the court's factual findings are clearly erroneous because the court's application of § 3A1.1 was improper even assuming the accuracy of its findings. Cf. Williams, 291 F.3d at 1196 (“The factual findings related to vulnerability here were not clearly erroneous. However, we still must decide whether the application of the enhancement was permissible ... or inapplicable because the victims were ‘typical’ Mann Act victims....”) (internal citation omitted). Although the district court concluded that A.J. was an unusually vulnerable minor, it did not distinguish A.J. from the typical victim of the offense of conviction. Rather, it compared her to minors in the general population, which is not the correct inquiry.³Castellanos, 81 F.3d at 110.

The factors the court relied on to justify its application of § 3A1.1—A.J.'s pre-existing interest in sex and drug use, her boredom, and her inclination to get away from her divorced parents—at most support the court's conclusion that A.J. was “more likely than other members of the general population to become a victim to the particular crime at issue,” which we have held is insufficient to support the application of the upward adjustment. Id. Our precedents indicate that the district court's findings are insufficient to support a § 3A1.1 adjustment when comparing A.J. to the typical victim of the offense of conviction.

In Williams, we considered the application of § 3A1.1 in a case in which the defendant was convicted of enticing or coercing two minors to engage in criminal sexual activity, in violation of 18 U.S.C. § 2422(a).⁴ We reversed the district court's application of § 3A1.1 with regard to one minor, because the court “made no findings of unusual vulnerability beyond [the victim's] status as a drug-addicted teenage runaway.” Williams, 291 F.3d at 1196. We noted that an unstable personal life and chemical dependency are “characteristics ... typical among Mann Act victims and, without more, cannot support the application of § 3A1.1.” Id.; see also Castaneda, 239 F.3d at 981 (adopting the First Circuit's reasoning in United States v. Sabatino, 943 F.2d 94, 102–103 (1st Cir.1991)); United States v. Scott, 529 F.3d 1290, 1302 (10th Cir.2008) (“The Ninth Circuit has reasoned that an unstable living environment alone cannot support the vulnerability enhancement.... We agree that an unstable personal life is...