Lead Opinion
Opinion by Judge TASHIMA; Dissent by Judge CALLAHAN.
OPINION
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. § 4B 1.5(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,
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,
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. § 3Al.l(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,
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 § 3Al.l(b) enhancement is not permitted.” United States v. Castaneda,
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,
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).
The dissent argues that the fact that A.J. could be enticed to have sex with Nielsen itself demonstrates that she was unusually vulnerable. While this openness to enticement may distinguish A.J. from other minors, it does not provide a basis for determining that she was more susceptible than the typical victims of 18 U.S.C. § 2422, who by definition have been enticed to engage in sexual activity. Cf. Luca,
Our decision today does not preclude the application of the vulnerable victim adjustment in other cases involving
B. Repeat and Dangerous Sex Offender Enhancement
The “Repeat and Dangerous Sex Offender Against Minors” enhancement applies if a defendant “committed the instant offense of conviction subsequent to sustaining at least one sex offense convietion[.]” U.S.S.G. § 4B1.5(a). Presenting a question of first impression in this circuit, Nielsen argues that the district court should not have applied § 4B1.5(a) to enhance his sentence because his juvenile adjudication for sexual assault does not count as a “conviction” within the meaning of the Guidelines. We agree.
The application notes to § 4B1.5(a) define “sex offense conviction” as “any offense described in 18 U.S.C. § 2426(b)(1)(A) or (B), if the offense was perpetrated against a minor----” U.S.S.G. § 4B1.5 cmt. n.3(A)(ii). The government argues that the inclusion of the phrase “any offense” in this definition demonstrates the Sentencing Commission’s intent to count “any” prior sexual offense against a minor as a conviction, including juvenile adjudications. A plain reading of the note indicates, however, that it is meant to address which substantive offenses count as a “sex offense,” rather than define what constitutes a “conviction.”
When the Guidelines apply to juvenile adjudications, they say so expressly. Thus, § 4A1.2(d) specifically addresses “juvenile sentences,” and the application notes to § 4A1.2 describe in detail how juvenile adjudications are to be treated with regard to the term “prior sentence.” See United States v. Williams,
Further, the Guidelines do not use the word “conviction” to refer to juvenile adjudications. Certain juvenile adjudications count as “prior sentences” or offenses, see, e.g., U.S.S.G. § 4A1.2(d), but the word “conviction” is used only to refer to adult convictions. See U.S.S.G. § 4B1.2 cmt. n.l (defining a “prior felony conviction” as “a prior adult federal or state conviction”). This is consistent with our general understanding that juvenile adjudications do not result in “convictions.” See United States v. Doe,
The government notes that juvenile adjudications qualify as predicate convictions under particular federal statutes. But Congress also specifically indicates when it intends for juvenile adjudications to be considered convictions, while imposing age and severity limitations on what sorts of adjudications may be considered. See, e.g., Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. § 16911(8) (“The term ‘convicted’ or a variant thereof, used with respect to a sex offense, includes adjudicated delinquent as a juvenile for that offense, but only if the offender is 14 years of age or older at the time of the offense and the offense adjudicated was comparable to or more severe than aggravated sexual abuse.... ”). The Guidelines do not specify which subset of juvenile adjudications may be considered “sex offense convictions” under § 4B1.5; they do not specify that juvenile adjudications may be considered at all.
We therefore hold that the district court erred in applying § 4B1.5(a), because Nielsen’s juvenile adjudication does not constitute a “sex offense conviction.” Our interpretation of § 4B 1.5(a) comports with the rule of lenity, which “applies to Sentencing Guidelines as well as to penal statutes.” United States v. Fuentes-Barahona,
The government argues that any error in applying § 4B1.5(a) was harmless, because Nielsen could be considered a “repeat and dangerous sex offender” under § 4B1.5(b), if not subsection (a). See U.S.S.G. § 4B1.5(b) (providing for an enhancement “[i]n any case in which the defendant’s instant offense of conviction is a covered sex crime ... and the defendant engaged in a pattern of activity involving prohibited sexual conduct”). However, if the district court had not imposed the “vulnerable victim” adjustment, Nielsen’s Guidelines range would have been lower if the court had applied subsection (b) instead of subsection (a), so the error in treating Nielsen’s prior adjudication as a conviction under § 4B 1.5(a) was not harmless. See United States v. Munoz-Camarena,
C. Substantive Reasonableness
Because we conclude that the district court erred in calculating the Guidelines range for Nielsen’s sentence, we do not reach the question of whether his sentence
IV. CONCLUSION
For the foregoing reasons, we VACATE Nielsen’s sentence and REMAND for re-sentencing in conformity with this opinion.
Notes
. We use the initials "A.J.” to protect the identity of the minor victim.
. The dissent argues that the adjustment should apply because A.J. was not in a position of sufficient strength to resist the 6'4", 370-pound Nielsen. But it points to nothing in the record indicating that A.J.’s size made her more vulnerable than the typical minor victim of the offense of conviction, or even other minors in general. It is more reasonable to assume that the typical victim of the crime at issue would be equally vulnerable when faced with Nielsen's larger size. Cf. United States v. Holt,
. The dissent asserts that we should defer to the district court's decision to apply the adjustment, but no deference is warranted where the district court applies an incorrect legal standard. See United States v. Petersen,
. Although Williams addressed a violation of 18 U.S.C. § 2422(a), while Nielsen was convicted of violating § 2422(b), the holding of that case is still relevant here. The two subsections of § 2422 share a common lineage in the Mann Act of 1910, and they are nearly identical in wording, except that § 2422(b) specifically addresses minors. See United States v. Laureys,
. The dissent mistakenly argues that the adjustment applies because Nielsen's conduct demonstrated a "new level of depravity” as compared to other offenders. But it is the "defendant's choice of victim[]” that must show an "extra measure of criminal depravity” for the adjustment to apply; the depravity of the offender’s conduct in matters other than his choice of victim is legally irrelevant to the applicability of § 3A1.1. See Castellanos,
Dissenting Opinion
dissenting:
I respectfully dissent. William Nielsen coerced a seventh-grade girl to abscond from her home, take ■ an overnight bus from Wyoming to Montana, do illegal drugs, and engage in four days of sadomasochistic sex with a man she knew was a registered sex offender. It strains credulity to say, as the majority does, that a child who can be coerced into doing those things is not unusually vulnerable. What is worse, by holding that a vulnerable victim adjustment under Sentencing Guidelines § 3A1.1 was unavailable in this case, the majority makes the adjustment unavailable for all but the most defenseless victims of sexual coercion. There is no indication the Sentencing Commission intended § 3A1.1 to be such a toothless watchdog.
The district court did not err in enhancing Nielsen’s sentence under Sentencing Guidelines § 4B1.5(a). Nothing in that Guideline excludes juvenile adjudications from the definition of “sex offense conviction.” We must rely on the Guidelines’ plain language, rather than insert words it does not contain or look to irrelevant state law. Even if the district court erred in applying § 4B1.5(a), that error was harmless because Nielsen qualified for a “pattern of activity” enhancement under § 4B1.5(b). Finally, Nielsen’s sentence is substantively reasonable.
I. Vulnerable victim adjustment
Section 3A1.1 of the Sentencing Guidelines provides for a two-level enhancement of 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. 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.” Id. § 3A1.1 cmt. n.2. To be an “unusually vulnerable” victim, a person must be less able to resist than the typical victim of the offense of conviction. United States v. Castaneda,
There is. The district court found that A.J. was from a broken home, she was bored, she wanted to use illegal drugs, she had accessed an adult online sex site, and, despite being just twelve years old and in the seventh grade, she had been sexually active in the past. As if to underscore these vulnerabilities, A.J. stole money from her parents to purchase an interstate bus ticket and then traveled, alone, from Wyoming to Montana to meet a man who was twice her age and whom she knew was a registered sex offender. See United States v. Weischedel,
While the district court called AJ.’s unusual vulnerability a “very difficult question,” it concluded that, “in weighing all of the proof I think it is more likely that she is an unusually vulnerable person or vie
Indeed, that A.J. was willing to steal money from her parents and travel to another state to meet an adult man she knew was a registered sex offender shows she did not appreciate the danger she was in. See United States v. Miguel,
In reversing the district court, the majority cites cases holding that an unstable personal life and chemical dependency are not by themselves enough to find unusual vulnerability. Maj. Op. at 1036-37. But A.J. didn’t just come from a troubled home and want to smoke pot; she also was, .in the district court’s words, “unusually precocious.” The district court initially cited A.J.’s headstrong nature as a reason she might not be unusually vulnerable, but it became clear during the sentencing hearing that the opposite was true. As the government argues, A.J. was unusually willing to engage in sex with Nielsen, whom she knew was a registered sex offender. The majority responds that while A.J.’s “openness to enticement may distinguish A.J. from other minors, it does not provide a basis for determining that she was more susceptible than the typical victims of 18 U.S.C. § 2422, who by definition have been enticed to engage in sexual activity.” Maj. Op. at 1036. In erroneously equating will with susceptibility, the majority overlooks that a headstrong minor may actually be more susceptible to sexual coercion than her meeker peers.
That was plainly the case here. The district court’s characterization of A.J. as “unusually precocious” reflected the fact that she was unusually troubled, something Nielsen knew and took advantage of. See United States v. James,
Of course, we need not constrain our review to A.J.’s characteristics in determining whether the § 3A1.1 adjustment applied. Contrary to the majority’s conclusion, Maj. Op. at 1037, Nielsen’s conduct demonstrated a “new level of depravity” as compared to other offenders. United States v. Castellanos,
Finally, even if this were a close case (it is not), we should defer to the district court. The majority does not disturb any of the district court’s factual findings, and accordingly we must respect them. United States v. Salcido,
II. Repeat and dangerous sex offender enhancement
Nielsen previously was adjudicated a juvenile delinquent in state court after he pleaded guilty to sexually assaulting his half sister. The district court relied on this adjudication to enhance Nielsen’s sentence under Sentencing Guideline § 4B1.5(a), which applies where “the defendant committed the instant offense of conviction subsequent to sustaining at least one sex offense conviction.”
We know that Nielsen’s juvenile adjudication is a “sex offense conviction” under § 4B1.5(a) for a simple reason: § 4B1.5(a) “and its Application Notes contain no juvenile-conduct or conviction-limiting language, in contrast to other Guidelines within Chapter 4.” United States v. Phillips,
The majority chooses to ignore the plain language of § 4B1.5(a) and our canons for reading it, arguing instead that “[w]hen the Guidelines apply to juvenile adjudications, they say so expressly.” Maj. Op. at 1037 (citing U.S.S.G. § 4A1.2(d)); see also Maj. Op. at 1038 (making the same assertion with respect to statutes enacted by Congress). To win the stalemate, the majority cites the rule of lenity, but that rule applies “only where ‘after seizing every thing from which aid can be derived, the Court is left with an ambiguous statute.’ ” United States v. Nader,
The majority’s remaining arguments hold little water. The majority relies on United States v. Doe,
The majority also cites the fact that, under Montana law, “criminal conviction[s]” do not include juvenile adjudications. Maj. Op. at 1038 (citing MontCode Ann. § 41-5-106). But whether state law defines a juvenile adjudication as a “conviction” is irrelevant to whether the federal Sentencing Guidelines do so. See United States v. Leal-Felix,
At the end of the day, it does not matter whether the district court erred in enhancing Nielsen’s sentence under § 4B1.5(a) because any error was harmless. The parties agree, and the majority does not dispute, that Nielsen “engaged in a pattern of activity involving prohibited sexual conduct” under § 4B1.5(b). Because the district court properly applied the vulnerable victim adjustment, the § 4B1.5(b) enhancement places Nielsen in the same sentencing range (235-293 months) as if § 4B1.5(a) applied.
Because the majority vacates Nielsen’s sentence under U.S.S.G. §§ 3A1.1 and 4B1.5(a), it does not address Nielsen’s argument that his sentence is substantively unreasonable. Because I would find no error in the district court’s application of §§ 3A1.1 and 4B1.5(a), I address Nielsen’s argument.
We review the substantive reasonableness of a criminal sentence for abuse of discretion. United States v. Ressam,
While 480 months is a long sentence, the district court appropriately explained why that sentence was reasonable based on the factors laid out in 18 U.S.C. § 3553(a). The court discussed Nielsen’s “history and characteristics,” 18 U.S.C. § 3553(a)(1), including Nielsen’s prior sex offenses, flat affect during the sentencing hearing, psychopathic traits, high risk of recidivism, and four-time failure to complete sex offender treatment. The court discussed the need for Nielsen’s sentence to promote respect for the law, referencing Nielsen’s failure to register as a sex offender and his difficulties with supervision. Finally, the court discussed the need to protect the public, referencing Nielsen’s young age, lack of honest remorse, and demonstrated poor potential for rehabilitation.
The district court, having decided that an above-Guidelines sentence was warranted, “ ‘considered] the extent of the deviation and ensure[d] that the justification [was] sufficiently compelling to support the degree of the variance.’ ” Carty,
Nielsen nonetheless argues that his sentence is substantively unreasonable for three reasons. First, Nielsen contends that the factors the district court relied on to fashion his sentence were “repetitious”; that is, they already were accounted for in the Sentencing Guidelines provisions the district court used to calculate his sentencing range. But while there is some overlap, the Guidelines provisions do not account for factors that were critical to the district court’s decision, such as Nielsen’s use of drugs to entice A.J., the sadomasochistic aspects of Nielsen’s conduct, or the physical repercussions for A. J., all of which bear on the “nature and circumstances of the crime,” 18 U.S.C. § 3553(a)(1), and which meant, in the district court’s estima
IV. Conclusion
The record and the case law support the district court’s finding that A.J. was an unusually vulnerable victim warranting an adjustment to Nielsen’s sentence under Sentencing Guidelines § 3A1.1. In holding otherwise, the majority puts that adjustment out of reach in all but the rarest of cases. In addition, the district court did not err in enhancing Nielsen’s sentence under Sentencing Guidelines § 4B1.5(a) based on a prior juvenile sexual assault adjudication. Nothing in that section limits “sex offense conviction[s]” to adult, rather than juvenile, adjudications. In any event, any error in applying this enhancement was harmless, since Nielsen was eligible for an enhancement under § 4B1.5(b). Finally, Nielsen’s sentence is substantively reasonable. For these reasons, I would affirm the district court.
. The majority incorrectly asserts that I "do[] not identify any factors that meaningfully distinguish AJ. from R.K., the minor victim in Williams." Maj. Op. at 1036. In Williams, the district court concluded that R.K. came from an unstable home and used drugs. We held that these characteristics were not enough to distinguish R.K. from other victims of the Mann Act, to which the statute of conviction in Williams (as here) traced its origins. Williams,
Here, however, A.J. was not a sex worker who was used and abused by her pimp; she was a 12-year-old girl who, given her extraordinary past, habits, and personality, was capable of being (and was) coerced into extraordinary exploitation. In addition, whereas in Williams the district court did not make any findings regarding the defendant’s "potential exploitation of that vulnerability,” id., here the district court expressly found that Nielsen knew of A.J.’s vulnerabilities and took advantage of them.
. In Koon v. United States,
Whether a given factor is present to a degree not adequately considered by the Com*1042 mission, or whether a discouraged factor nonetheless justifies departure because it is present in some unusual or exceptional way, are matters determined in large part by comparison with the facts of other Guidelines cases. District courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines sentences than appellate courts do.
The same considerations apply when applying sentencing enhancements, including the vulnerable victim adjustment.
. The majority responds that the vulnerable victim adjustment remains available for 18 U.S.C. § 2422(b) violations “so long as the district court identifies a specific factor (or factors) that made the victim uniquely vulnerable as compared to the typical victim of the offense.” Maj. Op. at 1037. The point is that the district court did that here. The majority’s contrary conclusion serves to winnow the factors upon which a district court may base the adjustment, even though no authority compels that result and good reason counsels against it.
. Phillips actually addressed § 4B 1.5(b), but this observation is equally true of § 4331.5(a).