United States v. William Nielsen
2012 U.S. App. LEXIS 19133
| 9th Cir. | 2012Background
- Nielsen coerced a 12-year-old girl, A.J., after contacting her on an adults-only sex chat line and engaging in phone sex and sexting.
- A.J. traveled from Wyoming to Montana to meet Nielsen, who was aware she was a minor and a registered sex offender.
- In Nielsen’s Montana residence, he provided marijuana and engaged in four days of repeated sexual activity with A.J., including bondage and sadomasochistic acts.
- A.J. ultimately was located by her divorced parents and removed from Nielsen’s apartment after four days.
- Nielsen pled guilty to coercion and enticement of a minor under 18 U.S.C. § 2422(b) and the district court enhanced his offense level under § 3A1.1 and imposed a § 4B1.5(a) enhancement.
- The district court sentenced Nielsen to 480 months’ imprisonment, well above the Guidelines range of 235–293 months, prompting the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 3A1.1 vulnerable victim applies | Nielsen argues A.J. was not unusually vulnerable beyond minor status. | The district court found multiple factors making A.J. unusually vulnerable given her age and circumstances. | § 3A1.1 does not apply; victim not unusually vulnerable compared to typical victims. |
| Whether juvenile adjudication counts as a sex offense conviction for § 4B1.5(a) | Nielsen contends juvenile adjudication cannot be a ‘sex offense conviction’ under § 4B1.5(a). | Government contends juvenile adjudications can count as sex offense convictions under § 4B1.5(a). | § 4B1.5(a) does not apply because Nielsen’s juvenile adjudication is not a sex offense conviction; harmless error if § 4B1.5(b) applies. |
| Whether the district court’s substantive reasoning for above-Guidelines sentence was proper | Even with the reversals, Nielsen argues the sentence remains substantively unreasonable. | The court’s explanation, including Nielsen’s history, risk of recidivism, and protection of the public, supports the variance. | Court of appeals vacates and remands for resentencing; substantive reasonableness not reached due to Guideline errors. |
Key Cases Cited
- United States v. Wetchie, 207 F.3d 632 (9th Cir. 2000) (unusually vulnerable means less able to resist than typical victim)
- United States v. Luca, 183 F.3d 1018 (9th Cir. 1999) (vulnerability must be beyond ordinary susceptibility; base factor insufficient)
- United States v. Castellanos, 81 F.3d 108 (9th Cir. 1996) (can't apply § 3A1.1 based on vulnerability that is not unusual)
- United States v. Castaneda, 239 F.3d 978 (9th Cir. 2001) (victim’s relative vulnerability must be unusual, not just common traits)
- United States v. Williams, 291 F.3d 1180 (9th Cir. 2002) (addressed similar § 3A1.1 issues; noted limits of crucial factors)
- United States v. Archdale, 229 F.3d 861 (9th Cir. 2000) (affirmed adjustment where victim had cognitive disability)
- United States v. Mendoza, 262 F.3d 957 (9th Cir. 2001) (consideration of individual victim circumstances in vulnerability analysis)
- United States v. Phillips, 431 F.3d 86 (2d Cir. 2005) (discussion of how juvenile adjudications interact with guidelines in context of § 4B1.5)
- United States v. Holt, 510 F.3d 1007 (9th Cir. 2007) (vulnerable victim analysis includes very young or small victims)
- United States v. Carty, 520 F.3d 984 (9th Cir. 2008) (standard for reviewing variance decisions; abuse of discretion considerations)