No Vulnerable-Victim Enhancement When Double Counts Factors Already Accounted for by Other Enhancements

United States v. Ramos, No. 11-51232 (5th Cir. Jan. 9, 2014) (Higginbotham, Owen, Higginson)

Ramos pleaded guilty to one count of receipt of child pornography, one count of distribution of child pornography, and two counts of possession of child pornography.  The presentence report recommended a two-level enhancement for vulnerable victims explaining that Ramos knew or should have known that the victims were vulnerable because they were young and small.  Ramos objected to the vulnerable-victim enhancement as double counting the age and sadistic-conduct enhancements.  The district court overruled the objection. 

The panel “doubt[s] that the district court correctly applied the vulnerable-victim enhancement here, where the only factor that made these children particularly vulnerable as compared to other pre-pubescent children—that some images depicted the children bound to chairs with rope—was already accounted for by the sadistic-conduct enhancement.”  The panel rejects the Government’s argument that the sadistic-conduct enhancement was broader in that it covers other behavior present in the videos.  Under United States v. Jenkins, 712 F.3d 209 (5th Cir. 2013), the question is not whether other videos could justify the sadistic-conduct enhancement but whether the factor that makes the person a vulnerable victim is already incorporated in the offense guideline.  Here, “the sadistic-conduct enhancement already covered the vulnerability of bondage.”

Any error, however, was harmless.  The district court granted a variance on the first two counts and sentenced Ramos to the statutory maximum for the possession counts: 120 months.  The panel believed the record was clear that the district court would have imposed the same sentence even if the Guidelines range was properly calculated.