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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-13067
Non-Argument Calendar
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D.C. Docket No. 2:17-cr-00129-LSC-TFM-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL LOWE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
________________________
(March 26, 2019)
Before WILSON, JILL PRYOR, and FAY, Circuit Judges.
PER CURIAM:
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Michael Lowe was convicted of one count of sex trafficking a child under 18
U.S.C. §§ 1591(a)(1), (b)(2), and (c) (Count 1), and one count of conspiracy to do
the same under 18 U.S.C. § 1594(c) (Count 2). Lowe now appeals his 220-month
sentence. Lowe argues that the district court incorrectly sentenced him by finding
that he knew or should have known that M.H. was a vulnerable victim. After
review, we affirm.
I.
A federal grand jury indicted Lowe on Counts 1 and 2. Lowe pleaded not
guilty and proceeded to trial. At trial, M.H.—the victim—testified that she had
known Lowe for two years. She met Lowe while she was using meth and living at
the house of another drug addict. Though M.H. was not living with her family at
this time, Lowe knew of M.H.’s siblings and knew about her mother.1 M.H. had a
sexual relationship with Lowe, used drugs with him, and stayed with him on the
street after leaving the house where they met.
M.H. also testified that she met Joshua Rose through Lowe. On the day that
they met, Rose asked M.H. to have sex with another man—a “client”—for money.
Rose urged M.H. to do it so that he would have money to pay for the hotel room
that they would all share, and so that he could get his girlfriend, K.G., out of jail.
1
According to uncontested facts in the Presentence Investigation Report (PSI), M.H.’s mother
was a drug addict who was in and out of jail.
2
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M.H. agreed to have sex with the client. After this initial agreement, M.H. had sex
with various other clients. M.H. gave the money that she made from prostituting to
Rose, who used it to buy drugs for himself, M.H, and Lowe. Eventually, however,
M.H. decided that she did not want to see clients anymore. She argued with Lowe
and Rose about her decision, and ultimately left the hotel with Lowe.
Testimony from both Rose and M.H. established that Lowe knew of, and
participated in, M.H.’s prostitution. Lowe was in the room as Rose took pictures
of M.H. to create an advertisement for her services on Backpage. The ad stated
that M.H. was 18 years old, but Lowe knew that M.H. was 17 years old. When
M.H. met clients in the hotel room, Rose and Lowe would sit outside of the room
in Lowe’s car. Lowe was the only member of the group who possessed a car, and
at one point used it to drive M.H. to meet a client at another hotel.
Based on the information in the Presentence Investigation Report (PSI), a
probation officer assigned Lowe a base offense level of 30 under U.S.S.G.
§ 2G1.3(a)(2). In addition to various other enhancements and adjustments, the
probation officer added a victim-related upward adjustment of two levels under
§ 3A1.1(b)(1) because Lowe knew or should have known that M.H. was a
vulnerable victim. Lowe’s total adjusted offense level was 40. He had a criminal
history score of 4, so the probation officer assigned him a criminal history category
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of III. Based on these results, the officer calculated Lowe’s guideline
imprisonment range to be 360 months to life.
In a sentencing memorandum, Lowe objected to the PSI, arguing that the
two-level vulnerable victim enhancement should not have applied. Lowe argued
that M.H. was not unusually vulnerable due to her age, physical or mental
condition. Moreover, Lowe asserted that M.H. made the conscious decisions to
live with a drug addict, to use drugs, and to prostitute. Both Lowe and M.H., who
used drugs together, came from dysfunctional homes with mothers who were drug
addicts. Lowe argued that he did not market M.H. or prey on any vulnerability of
M.H, and her status as a minor was already taken into consideration in the crime
itself. Therefore, Lowe argued, applying the enhancement constituted double
counting.
At sentencing, Lowe reiterated his objection to the two-level vulnerable
victim enhancement under U.S.S.G. § 3A1.1(b)(1). He reiterated that M.H.’s age
was already taken into consideration as part of the crime and therefore should not
be the basis of the vulnerable victim enhancement. The government responded
that M.H.’s age was not the reason why she was a vulnerable victim; M.H. was
vulnerable because she was a runaway, had no parental supervision, her mother
was a drug addict and was not involved in her life, and the victim herself was a
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drug addict with no income and no vehicle. The government argued that M.H.
depended on Lowe for her needs. The court overruled Lowe’s objection.
The court stated that Lowe’s conduct was not at the level of Rose’s conduct,
and therefore ordered probation to decrease Lowe’s offense level by two levels
under U.S.S.G. § 3B1.2(b). The court found that Lowe’s guideline offense level
was 38, his criminal history category was III, and the guideline imprisonment
range was 292 to 360 months. The court sentenced Lowe to 220 months’
imprisonment, finding this amount of time appropriate given the nature and
circumstances of the offense and the history and characteristics of Lowe. The
court ordered Lowe to be on supervised release for 15 years. Lowe now appeals
the court’s inclusion of the vulnerable victim upward adjustment.
II.
“We review de novo the district court’s application of a U.S.S.G. § 3A1.1
enhancement, as it presents a mixed question of law and fact, but give due
deference to the district court’s determination that a victim was vulnerable, as [it]
is a factual finding.” United States v. Kapordelis,
569 F.3d 1291, 1315–16 (11th
Cir. 2009).
A two-level increase applies “[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)(1). A
“vulnerable victim” is “a person (A) who is a victim of the offense of conviction
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and any conduct for which the defendant is accountable under § 1B1.3 (Relevant
Conduct); and (B) 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, comment. (n.2). Both a victim’s circumstances and immutable
characteristics can render a victim “vulnerable.” United States v. Bradley,
644 F.3d
1213, 1288 (11th Cir. 2011).
In applying the vulnerable victim adjustment, we “focus[ ] chiefly on the
conduct of the defendant . . . where the defendant selects the victim due to the
victim’s perceived vulnerability to the offense.” United States v. Frank,
247 F.3d
1257, 1259–60 (11th Cir. 2001) (internal citation omitted). Furthermore, the
determination to apply the enhancement “must take into account the totality of the
circumstances, including in some cases the victim’s membership in a certain class
or occupation.”
Id. at 1260. Whether a victim qualifies as a vulnerable victim is a
fact intensive inquiry that must be made on a case-by-case basis.
Id.
III.
The district court did not err in applying the vulnerable victim enhancement
to Lowe’s sentence. The government expressly stated that age was not the only
reason for the vulnerable victim enhancement. Lowe was involved in the victim’s
prostitution, he had a sexual relationship with her, he was her sole means of
transportation, and he knew that she was addicted to drugs and had no supervision
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or support from her family. Analyzing the totality of the circumstances, Lowe
knew or should have known that the victim’s drug addiction, lack of supervision,
and dependence on him made her more susceptible to his criminal conduct.
U.S.S.G. § 3A1.1, comment. (n.2);
Bradley, 644 F.3d at 1288. Accordingly, we
affirm.
AFFIRMED.
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