United States v. William Nielsen , 694 F.3d 1032 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 11-30189
Plaintiff-Appellee,
v.  DC No.
CR 11-008 DWM
WILLIAM RICHARD NIELSEN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
April 10, 2012—Seattle, Washington
Filed September 12, 2012
Before: Dorothy W. Nelson, A. Wallace Tashima, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Tashima;
Dissent by Judge Callahan
11121
11124 UNITED STATES v. NIELSEN
COUNSEL
Cyndee L. Peterson, Assistant United States Attorney, Mis-
soula, Montana, for the plaintiff-appellee.
Michael Donahoe, Senior Litigator, Federal Defenders of
Montana, Helena, Montana, for the defendant-appellant.
OPINION
TASHIMA, Circuit Judge:
William Nielsen appeals the sentence imposed following
his guilty plea to coercion and enticement of a minor in viola-
tion 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” enhance-
ment pursuant to U.S.S.G. § 4B1.5(a), on the basis of his
adjudication as a delinquent youth. We have jurisdiction pur-
suant to 28 U.S.C. § 1291. We vacate Nielsen’s sentence and
remand for resentencing.
UNITED STATES v. NIELSEN 11125
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 regis-
tered 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 sadomas-
ochistic activity. While she was at Nielsen’s apartment, A.J.
had full use of her phone, which she used to send text mes-
sages 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 entice-
ment of a minor, a violation of 18 U.S.C. § 2422(b). The dis-
trict court applied a two-level upward adjustment to Nielsen’s
offense level pursuant to U.S.S.G. § 3A1.1, based on its con-
clusion that Nielsen knew or should have known that A.J. was
1
We use the initials “A.J.” to protect the identity of the minor victim.
11126 UNITED STATES v. NIELSEN
unusually vulnerable as compared to other minors. The court
also applied a “repeat and dangerous sex offender” enhance-
ment, based on its conclusion that Nielsen’s juvenile adjudi-
cation 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 interpreta-
tion 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
[1] 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 vulnera-
ble due to age, physical or mental condition, or who is other-
wise particularly susceptible to the criminal conduct.”
U.S.S.G. § 3A1.1 cmt. n.2.
[2] A victim is “unusually vulnerable” when she is “less
able to resist than the typical victim of the offense of convic-
tion.” United States v. Wetchie, 207 F.3d 632, 634 (9th Cir.
UNITED STATES v. NIELSEN 11127
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 tar-
geting such victims do not necessarily merit a sen-
tence 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.
[3] Therefore, “[i]f the factor that makes the victim vulner-
able 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.
2
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 Niel-
sen. 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 convic-
tion, 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, 510 F.3d 1007,
1011 (9th Cir. 2007) (“A district court can apply the vulnerable victim
enhancement where a child is so young and small that he or she is less
able to resist than other child victims of pornography.”) (emphasis added);
United States v. Scott, 529 F.3d 1290, 1303 (10th Cir. 2008) (victim was
“unusually vulnerable even among Mann Act victims” because she was
“particularly small and frail . . . for her age”).
11128 UNITED STATES v. NIELSEN
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 “vul-
nerable 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 vulner-
able victim.
At Nielsen’s sentencing, the district court stated that it was
a “very difficult question” whether § 3A1.1 applied. Compar-
ing 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 con-
cluded that § 3A1.1 applied because A.J. came from “a bro-
ken 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.
[4] 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
UNITED STATES v. NIELSEN 11129
the offense of conviction. Rather, it compared her to minors
in the general population, which is not the correct inquiry.3
Castellanos, 81 F.3d at 110.
[5] 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 appli-
cation 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 run-
away.” 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,
3
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, 98
F.3d 502, 505-06 (9th Cir. 1996).
4
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,
653 F.3d 27, 41-42 (D.C. Cir. 2011) (Henderson, J., dissenting) (tracing
origin of § 2422(b) to the Mann Act of 1910).
11130 UNITED STATES v. NIELSEN
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 enhance-
ment . . . . We agree that an unstable personal life is suffi-
ciently common among Mann Act victims that [the 13 year
old victim’s] runaway status cannot support the enhance-
ment.”) (citing Williams, 291 F.3d at 1195-96); United States
v. Beith, 407 F.3d 881, 892 (7th Cir. 2005) (“Unfortunately,
family discord is common among victims [of the Mann Act]
. . . . A finding of family problems, therefore, is not sufficient
to support this enhancement.”). While the dissent argues that
the typical victims of the offense of conviction “almost cer-
tainly do not share most or all” of the characteristics that
made A.J. particularly susceptible to the criminal conduct, it
does not identify any factors that meaningfully distinguish
A.J. from R.K., the minor victim in Williams. See Williams,
291 F.3d at 1185 (describing unstable home life, drug use,
and sexual activity).
[6] 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, 183 F.3d
at 1028 (“We recognized that criminals typically direct their
activities toward those who are more likely to succumb to the
scheme and indicated that the district court must consider
more than the fact that a defendant would likely succeed in
defrauding his or her targeted victim.”) (citing Castellanos, 81
F.3d at 111).
[7] Our decision today does not preclude the application of
the vulnerable victim adjustment in other cases involving vio-
lations of 18 U.S.C. § 2422(b). The adjustment remains avail-
UNITED STATES v. NIELSEN 11131
able in such cases so long as the district court identifies a
specific factor (or factors) that made the victim uniquely vul-
nerable as compared to the typical victim of the offense. See
Williams, 291 F.3d at 1196 (affirming adjustment where dis-
trict court found that victim had a “mental condition” result-
ing from being raped when she was seven); see also United
States v. Archdale, 229 F.3d 861, 869 (9th Cir. 2000) (affirm-
ing adjustment in case involving sexual abuse of a minor,
where victim had a cognitive disability and “borderline intelli-
gence”). Here, however, the district court failed to determine
that A.J. was less able to defend herself and more deserving
of societal protection than the typical minor enticed to partici-
pate in unlawful sexual activity in violation of § 2422. See
Luca, 183 F.3d at 1027. Nor did the court base its application
of the adjustment on a finding that, by choosing A.J. as his
victim, Nielsen “reached a new level of depravity” as com-
pared to other perpetrators of his crime.5 Id.; see also Castel-
lanos, 81 F.3d at 112. It was error for the district court to
apply § 3A1.1 in this context.
B. Repeat and Dangerous Sex Offender Enhancement
[8] 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 conviction[.]” U.S.S.G. § 4B1.5(a). Present-
ing a question of first impression in this circuit, Nielsen
argues that the district court should not have applied
5
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, 81 F.3d at 111. The fact that Nielsen’s conduct involved sex,
drugs, and other indications of moral depravity was properly accounted for
under other sentencing enhancements and the court’s consideration of the
sentencing factors set forth in 18 U.S.C. § 3553(a).
11132 UNITED STATES v. NIELSEN
§ 4B1.5(a) to enhance his sentence because his juvenile adju-
dication for sexual assault does not count as a “conviction”
within the meaning of the Guidelines. We agree.
[9] 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 govern-
ment 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.”
[10] 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, 891 F.2d 212, 215 (9th Cir. 1989) (“The sentencing
guidelines include a section specifically addressing the use of
prior juvenile sentences in determining the criminal history
level of a defendant.”); U.S.S.G. § 4A1.2 cmt. n.7 (“[F]or
offenses committed prior to age eighteen, only those that
resulted in adult sentences of imprisonment exceeding one
year and one month, or resulted in imposition of an adult or
juvenile sentence or release from confinement on that sen-
tence within five years of the defendant’s commencement of
the instant offense are counted.”). In contrast, § 4B1.5(a) and
its application notes include no reference to juvenile adjudica-
tions at all.
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
UNITED STATES v. NIELSEN 11133
adult convictions. See U.S.S.G. § 4B1.2 cmt. n.1 (defining a
“prior felony conviction” as “a prior adult federal or state con-
viction”). This is consistent with our general understanding
that juvenile adjudications do not result in “convictions.” See
United States v. Doe, 53 F.3d 1081, 1083 (9th Cir. 1995)
(“[A] successful prosecution under the [Federal Juvenile
Delinquency] Act results in a civil adjudication of status, not
a criminal conviction.”); Mont. Code Ann. § 41-5-106 (“No
adjudication upon the status of any youth in the jurisdiction
of the court . . . shall . . . be deemed a criminal conviction
. . . .”); State v. Hastings, 171 P.3d 726, 728 (Mont. 2007)
(“Hastings’ youth court adjudication did not constitute a ‘con-
viction’ . . . .”).
The government notes that juvenile adjudications qualify as
predicate convictions under particular federal statutes. But
Congress also specifically indicates when it intends for juve-
nile adjudications to be considered convictions, while impos-
ing 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 con-
victions” under § 4B1.5; they do not specify that juvenile
adjudications may be considered at all.
[11] 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 interpreta-
tion of § 4B1.5(a) comports with the rule of lenity, which “ap-
plies to Sentencing Guidelines as well as to penal statutes.”
United States v. Fuentes-Barahona, 111 F.3d 651, 653 (9th
Cir. 1997) (per curiam).
11134 UNITED STATES v. NIELSEN
The government argues that any error in applying
§ 4B1.5(a) was harmless, because Nielsen could be consid-
ered 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 pro-
hibited 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
§ 4B1.5(a) was not harmless. See United States v. Munoz-
Camarena, 631 F.3d 1028, 1031 (9th Cir. 2011) (per curiam).
C. Substantive Reasonableness
Because we conclude that the district court erred in calcu-
lating the Guidelines range for Nielsen’s sentence, we do not
reach the question of whether his sentence was substantively
reasonable. See id. (citing United States v. Carty, 520 F.3d
984, 991-92 (9th Cir. 2008) (en banc)).
IV. CONCLUSION
[12] For the foregoing reasons, we VACATE Nielsen’s
sentence and REMAND for resentencing in conformity with
this opinion.
CALLAHAN, Circuit Judge, 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
UNITED STATES v. NIELSEN 11135
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 sen-
tence 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 rea-
sonable.
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 “vul-
nerable victim” is a person who is “unusually vulnerable due
to age, physical or mental condition, or who is otherwise par-
ticularly 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, 239 F.3d
978, 981 (9th Cir. 2001); United States v. Wetchie, 207 F.3d
632, 634 (9th Cir. 2000). Because Nielsen was convicted of
violating 18 U.S.C. § 2422(b), which criminalizes coercion
and enticement of minors, there must be something more than
A.J.’s age to justify applying the vulnerable victim enhance-
ment in this case. Wetchie, 207 F.3d at 634.
11136 UNITED STATES v. NIELSEN
There is. The district court found that A.J. was from a bro-
ken 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 sexu-
ally active in the past. As if to underscore these vulnerabili-
ties, 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, 201 F.3d 1250, 1254 (9th Cir. 2000) (explaining
that the court must consider not only “the characteristics of
the defendant’s chosen victim,” but also “the victim’s reaction
to the criminal conduct[ ] and the circumstances surrounding
the criminal act”) (quotation marks and citation omitted).
While the district court called A.J.’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 victim,” especially considering “the
social aspect of this young person.” This conclusion is consis-
tent with our case law. See United States v. Johnson, 132 F.3d
1279, 1285-86 (9th Cir. 1997) (holding that a seventeen-year-
old foreign student who had only been with his host parent for
a few weeks before being sexually assaulted was a vulnerable
victim, even though he was sexually experienced, called home
several times, and knew people in the United States); United
States v. Williams, 291 F.3d 1180, 1196 (9th Cir. 2002) (per
curiam) (“[T]he enhancement for victim vulnerability still is
appropriate if the district court makes a finding of unique vul-
nerability in the circumstances.”), overruled on other
grounds, United States v. Gonzales, 506 F.3d 940 (9th Cir.
2007) (en banc); United States v. Mendoza, 262 F.3d 957,
960-61 (9th Cir. 2001) (holding that fraud victims were
unusually vulnerable based not on their identity as aliens, but
on their specific needs and background); United States v. Mat-
sumaru, 244 F.3d 1092, 1107-08 (9th Cir. 2001) (same).
Indeed, that A.J. was willing to steal money from her par-
ents and travel to another state to meet an adult man she knew
UNITED STATES v. NIELSEN 11137
was a registered sex offender shows she did not appreciate the
danger she was in. See United States v. Miguel, 368 F.3d
1150, 1157 (9th Cir. 2004) (explaining that young children
who willingly climbed into the back of a hot car trunk and did
not ask for water did not “fully appreciate the danger” of the
defendants’ smuggling operation, and therefore were “vulner-
able victims” under § 3A1.1). The vulnerability A.J. demon-
strated in these dangerous circumstances was particularly
acute given that A.J., though not an infant or a toddler, “was
not in a position of sufficient strength to resist,” United States
v. Holt, 510 F.3d 1007, 1012 (9th Cir. 2007), whatever the
6′4″, 370-pound Nielsen may have demanded of her. Further-
more, once A.J. met Nielsen in his apartment, she became
dependent on him for food, lodging, and possibly even money
to return home. See United States v. O’Brien, 50 F.3d 751,
756-57 (9th Cir. 1995) (holding that the vulnerable victim
adjustment was proper where insurance fraud victims were
reliant on health insurance provided by the defendants).
Together these cases easily support the district court’s finding
that A.J. was a vulnerable victim.
In reversing the district court, the majority cites cases hold-
ing that an unstable personal life and chemical dependency
are not by themselves enough to find unusual vulnerability.
Maj. Op. at 11129-30. But A.J. didn’t just come from a trou-
bled home and want to smoke pot; she also was, in the district
court’s words, “unusually precocious.” The district court ini-
tially cited A.J.’s headstrong nature as a reason she might not
be unusually vulnerable, but it became clear during the sen-
tencing hearing that the opposite was true. As the government
argues, A.J. was unusually willing to engage in sex with Niel-
sen, 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 11130.
In erroneously equating will with susceptibility, the majority
11138 UNITED STATES v. NIELSEN
overlooks that a headstrong minor may actually be more sus-
ceptible to sexual coercion than her meeker peers.
That was plainly the case here. The district court’s charac-
terization 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, 139 F.3d 709,
714 (9th Cir. 1998) (affirming a vulnerable victim adjustment
where the victim’s pregnancy “created a potential vulnerabil-
ity which [the defendant] acknowledged and exploited”). In
other words, precociousness in a 12-year-old girl with A.J.’s
background can be, and in this case was, a sign of unusual
vulnerability, not maturity, responsibility, or intelligence. And
even though minors who are enticed into sexual acts—that is,
the group against whom A.J. must be compared—may be
likely to share some of the characteristics that made A.J. “par-
ticularly susceptible to the criminal conduct,” U.S.S.G.
§ 3A1.1(b)(1), cmt. n.2, they almost certainly do not share
most or all of them.1
Of course, we need not constrain our review to A.J.’s char-
acteristics in determining whether the § 3A1.1 adjustment
applied. Contrary to the majority’s conclusion, Maj. Op. at
1
The majority incorrectly asserts that I “do[ ] not identify any factors
that meaningfully distinguish A.J. from R.K., the minor victim in Wil-
liams.” Maj. Op. at 11130. 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, 291 F.3d at 1196.
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.
UNITED STATES v. NIELSEN 11139
11131, Nielsen’s conduct demonstrated a “new level of
depravity” as compared to other offenders. United States v.
Castellanos, 81 F.3d 102, 112 (9th Cir. 1996); see also United
States v. Nichols, 464 F.3d 1117, 1122 (9th Cir. 2006) (hold-
ing that we may affirm an enhancement on any ground sup-
ported by the record). The district court specifically found that
“Mr. Nielsen has taken [adult males’ lascivious attraction to
children] to a completely different level. Not only did he . . .
entice this young woman to come to Montana to engage in
sex and drugs, he did so when she got here, having sexual
intercourse with her five and six times daily for the period
that she was in his apartment.” Nielsen’s moral depravity,
combined with A.J.’s unique traits (of which Nielsen was
aware and which no doubt informed Nielsen’s choice of vic-
tim), “create the extra need for societal protection which
§ 3A1.1 is designed to address.” United States v. Stover, 93
F.3d 1379, 1387 (8th Cir. 1996).
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, 506 F.3d 729,
732 (9th Cir. 2007). I recognize that we have not resolved
whether we review a district court’s application of the Guide-
lines to the facts de novo or for abuse of discretion. See
United States v. Swank, 676 F.3d 919, 921-22 (9th Cir. 2012).
Nonetheless, in a case like this one, the district judge’s per-
sonal observations of the victim and the perpetrator are far
more insightful than our review of a cold record, and we
should resolve any doubts in the district court’s favor. Cf.
Gall v. United States, 552 U.S. 38, 51 (2007) (“The sentenc-
ing judge is in a superior position to find facts and judge their
import under § 3553(a) in the individual case. The judge sees
and hears the evidence, makes credibility determinations, has
full knowledge of the facts and gains insights not conveyed by
the record.”) (quotation marks and citations omitted).2
2
In Koon v. United States, 518 U.S. 81, 98 (1996), the Supreme Court
explained:
11140 UNITED STATES v. NIELSEN
The effect of the majority’s opinion is to make the § 3A1.1
“vulnerable victim” adjustment much more difficult to apply.
As the majority correctly observes, our past cases hold or sug-
gest that a minor’s age, drug addiction, or unstable personal
life are not by themselves enough to apply the adjustment for
offenses committed under 18 U.S.C. § 2422. Maj. Op. at
11129-30 & n.4. But now we hold that much greater evidence
of vulnerability is not enough, either. If a twelve-year-old girl
from a troubled home who lies about her age, logs on to a sex
chat line, and is enticed by a self-confessed sex offender more
than twice her age to steal money from her parents, cross state
lines, do illegal drugs, and engage in repeated sadomasochis-
tic sex for four days isn’t unusually vulnerable, I don’t know
who is.3
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
Whether a given factor is present to a degree not adequately con-
sidered by the Commission, 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.
3
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 vul-
nerable as compared to the typical victim of the offense.” Maj. Op. at
11130-31. 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.
UNITED STATES v. NIELSEN 11141
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, 431
F.3d 86, 92 (2d Cir. 2005).4 Such limiting language is present
in U.S.S.G. § 4A1.1, which applies an enhancement for “each
prior sentence of imprisonment exceeding one year and one
month,” except that “[a] sentence imposed for an offense
committed prior to the defendant’s eighteenth birthday is
counted under this subsection only if it resulted from an adult
conviction.” U.S.S.G. § 4A1.1(a) & cmt. n.1. Similarly, an
enhancement applies for “each prior sentence of imprison-
ment of at least sixty days not counted in (a),” id. § 4A1.1(b),
but “[a]n adult or juvenile sentence imposed for an offense
committed prior to the defendant’s eighteenth birthday is
counted only if confinement resulting from such sentence
extended into the five-year period preceding the defendant’s
commencement of the instant offense,” id. § 4A1.1 cmt. n.2
(citing id. § 4A1.2(d)); see also id. § 4A1.1(c). Section
4B1.5(a) includes no such distinctions between juvenile and
adult adjudications. See Phillips, 431 F.3d at 92-93.
Our cardinal canons of construction require that we give
the Guidelines their plain meaning, United States v. Calderon
Espinosa, 569 F.3d 1005, 1007 (9th Cir. 2009), and avoid
inserting words they do not contain, see Sale v. Haitian Ctrs.
Council, Inc., 509 U.S. 155, 168 n.16 (1993); see also Am.
Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) (“[A]bsent
4
Phillips actually addressed § 4B1.5(b), but this observation is equally
true of § 4B1.5(a).
11142 UNITED STATES v. NIELSEN
a clearly expressed legislative intention to the contrary, [the
plain language of a statute] must ordinarily be regarded as
conclusive.” (quotation marks and citation omitted)).
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 11132 (citing U.S.S.G.
§ 4A1.2(d)); see also Maj. Op. at 11133 (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 stat-
ute.’ ” United States v. Nader, 542 F.3d 713, 721 (9th Cir.
2008) (quoting Smith v. United States, 508 U.S. 223, 239
(1993)). Here, there is no ambiguity, as neither § 4B1.5(a) nor
its application notes state or imply that a juvenile adjudication
does not qualify as “sex offense conviction.” We should not
canvass the Sentencing Guidelines to support negative impli-
cations because the Guideline before us is plain on its own
terms.
The majority’s remaining arguments hold little water. The
majority relies on United States v. Doe, 53 F.3d 1081 (9th Cir.
1995), for the general proposition that “juvenile adjudications
do not result in ‘convictions.’ ” Maj. Op. at 11133. However,
Doe dealt generally with the rehabilitative purposes of the
Federal Juvenile Delinquency Act, not with whether a juve-
nile adjudication is a “conviction” for purposes of sentencing
a defendant for a crime he committed as an adult. See Doe,
53 F.3d at 1083-84; see also Jonah R. v. Carmona, 446 F.3d
1000, 1007 (9th Cir. 2006) (cautioning against a “too-literal
reading of Title 18 as applied to juveniles” based on Doe).
The majority also cites the fact that, under Montana law,
“criminal conviction[s]” do not include juvenile adjudica-
tions. Maj. Op. at 11133 (citing Mont. Code Ann. § 41-5-
106). But whether state law defines a juvenile adjudication as
UNITED STATES v. NIELSEN 11143
a “conviction” is irrelevant to whether the federal Sentencing
Guidelines do so. See United States v. Leal-Felix, 665 F.3d
1037, 1040 (9th Cir. 2011) (“[W]e do not look to state law to
determine the meaning of the Sentencing Guidelines. A fed-
eral sentencing enhancement provision . . . is interpreted
according to a uniform, national definition, not dependent
upon the vagaries of state law.” (citation, internal quotation
marks, and alterations omitted)); see also United States v.
Mendoza-Morales, 347 F.3d 772, 776 (9th Cir. 2003)
(explaining that, “in deciding whether a prior state conviction
should be counted for purposes of a federal criminal history
calculation, a district court must examine federal law,” not
state law).
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.
III. Substantive reasonableness
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 applica-
tion 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, 679
F.3d 1069, 1086 (9th Cir. 2012) (en banc). A district court
abuses its discretion “ ‘when it makes an error of law, when
it rests its decision on clearly erroneous findings of fact, or
when we are left with a definite and firm conviction that the
11144 UNITED STATES v. NIELSEN
district court committed a clear error of judgment.’ ” Id.
(quoting United States v. Hinkson, 585 F.3d 1247, 1260 (9th
Cir. 2009) (en banc), cert. denied, 131 S. Ct. 2096 (2011)).
“We may not reverse just because we think a different sen-
tence is appropriate.” United States v. Carty, 520 F.3d 984,
993 (9th Cir.) (en banc), cert. denied sub nom., 553 U.S. 1061
(2008).
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, “ ‘consider[ed] the extent of the
deviation and ensure[d] that the justification [was] sufficiently
compelling to support the degree of the variance.’ ” Carty,
520 F.3d at 991 (quoting Gall v. United States, 552 U.S. 38,
50 (2007)). Specifically, the court concluded that, given the
facts of the crime and all of Nielsen’s characteristics, “a very,
very significant upward variation from the Guidelines is
appropriate and reasonable.” The court explained that it was
“unconvinced that 20 years is sufficient” and that “children
need to be protected from him. And the most significant way
to deal with . . . a person who is not likely to be subject to
rehabilitation or treatment, is to incarcerate him for a long
period of time.” In short, the district court’s explanation of its
sentencing decision is sufficient to “permit meaningful appel-
late review,” Carty, 520 F.3d at 992, and betrays no “clear
UNITED STATES v. NIELSEN 11145
error of judgment,” Ressam, 679 F.3d at 1086 (quotation
marks and citation omitted).
Nielsen nonetheless argues that his sentence is substan-
tively unreasonable for three reasons. First, Nielsen contends
that the factors the district court relied on to fashion his sen-
tence 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 dis-
trict court’s estimation, that “a much higher sentence is appro-
priate.” Nielsen also argues that the district court drew
“exaggerated” or “factually flawed” inferences from a psy-
chological report, including the inference that Nielsen was not
likely to learn from his experience. However, the report
explicitly arrived at that conclusion based on Nielsen’s lack
of self-control, impulsivity, callousness, and lack of guilt or
remorse. Finally, Nielsen asserts that his sentence is unfair
because the district court made no reference to A.J.’s conduct.
That assertion is incorrect; the court considered A.J.’s behav-
ior, including that she actively pursued drugs and was willing
to engage in sexual conduct. The district court did not abuse
its discretion by concluding that Nielsen’s encouragement of
these behaviors weighed for, rather than against, a lengthy
sentence.
IV. Conclusion
The record and the case law support the district court’s
finding that A.J. was an unusually vulnerable victim warrant-
ing 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
11146 UNITED STATES v. NIELSEN
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 sec-
tion 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.