“Vulnerable Victim” Enhancement Not Barred by “Victim Under 12” Enhancement

United States v. Jenkins, No. 11-51277 (5th Cir. Mar. 20, 2013) (King, Southwick, Graves)

Jenkins appealed his conviction and sentence for various offenses concerning child pornography. He argued that the district court erred in applying a two-level sentence enhancement pursuant to U.S.S.G. § 3A1.1(b)(1), the vulnerable victim enhancement, and that his sentence of twenty-years imprisonment is substantively unreasonable. The panel affirmed the judgment of the district court.

The vulnerable victim enhancement applies if the defendant knew or should have known that a victim of the offense was a vulnerable victim. Jenkins argued that the very nature of child pornography involves those who may be considered “vulnerable victims” due to age and that the vulnerability of the victims was already accounted for by the “prepubescent minor” and “depictions of violence” enhancements. The panel concluded that there was no logical reason why a “victim under the age of twelve” enhancement should bar application of the “vulnerable victim” enhancement when the victim is especially vulnerable, considering the fact that children under twelve years of age are vulnerable for various reasons other than age.

Jenkins also contended that his twenty-year sentence was substantively unreasonable. Jenkins claimed that the child pornography guideline, § 2G2.2, lacks an empirical basis. The panel found that Jenkins’ argument was foreclosed by United States v. Miller, 665 F.3d 114, 121 (5th Cir. 2011), and that he failed to show in any way that his sentence was substantively unreasonable.

See also blog post on United States v. Ramos, No. 11-51232 (5th Cir. Jan. 9, 2014), which considers Jenkins and does not apply the vulnerable-victim enhancement when the vulnerability was already accounted for by the sadistic-conduct enhancements.

Thanks to FPD Intern Matthew Gonzalez for this post.