United States v. Beith, William A. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2530
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIAM A. BEITH,
Defendant-Appellant.
____________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:02-CR-49—Rudy Lozano, Judge.
____________
ARGUED DECEMBER 3, 2003—DECIDED MAY 16, 2005
____________
Before FLAUM, Chief Judge, and POSNER and WILLIAMS,
Circuit Judges.
WILLIAMS, Circuit Judge. William A. Beith, the former
principal of Liberty Baptist Bible Academy, who pled guilty
to fleeing from Indiana to Nevada so that he could continue
his illicit sexual relationship with his eleven-year-old
student, challenges various Federal Sentencing Guidelines
determinations made by the district court. We find that the
defendant was sentenced under the appropriate offense
guideline relating to the victim’s age and that the use of the
victim’s age to enhance the defendant’s offense level under
that new offense guideline does not constitute impermissi-
2 No. 03-2530
ble double counting. However, the record does not support
the district court’s decision to apply an enhancement for
abduction and the victim’s vulnerability, and so we agree
that the defendant must be resentenced.
I. BACKGROUND1
William A. Beith was born May 21, 1972. At age 19, he
began teaching at the Liberty Baptist Bible Academy
(Academy) in Lake Station, Indiana. He received his bache-
lor’s degree in Christian Education in 1995, and served as
principal of the Academy for approximately two years prior
to the charges in this action.
Beith first met G.M. when she began attending the
Academy in the third grade at the age of 8 years. In the im-
mediate years thereafter, Beith developed a relationship
with G.M. that he considered to be “close,” yet not so close
as to transgress appropriate bounds between teacher and
student. The dynamic of their relationship, however, changed
around February 2001, when G.M. was 11 years old and in
the sixth grade. G.M. approached Beith, then 29 years old,
complaining of problems at home. In particular, she told
him that her father had touched her inappropriately and
was perhaps “peeping” at her. In response, Beith directed
G.M.’s teacher, Suzanne Waddell, to set up a meeting with
G.M.’s mother to discuss the allegations. After learning of
G.M.’s allegations at the meeting, G.M.’s mother confronted
her husband. The veracity of G.M.’s allegations regarding
her father remain marginally in doubt.2
1
As Beith pled guilty, we have assembled the facts, as did the
district court, from the pleadings, grand jury testimony, exhibits,
FBI reports, and presentencing report.
2
The bulk of the evidence suggests that, when confronted by
G.M.’s mother, G.M.’s father did not deny the allegations, but per-
(continued...)
No. 03-2530 3
After the meeting with G.M.’s mother, Beith’s contact
with G.M. became more frequent. Beith allowed G.M. and
other students to visit him in his office during recess and
lunch breaks, and subsequently encouraged G.M. to come to
his office to talk alone. As a result of spending time with
Beith during the course of the school day, G.M. would be
late for class at least two or three times a week. On such
occasions, Beith would provide G.M. with notes excusing
her tardiness. Though G.M.’s teacher and other members of
the faculty became troubled by the amount of attention
Beith was lavishing on G.M., Beith sought to assuage those
concerns by explaining he was merely counseling G.M.
about her family problems.
Beith began taking G.M. to his home after school. On one
occasion, following a math tutoring session, Beith took G.M.
and a fellow female student out for pizza and then to his
house. After inviting them inside, the girls changed clothes
in his bedroom. Beith videotaped them as they tried on his
jewelry and played with his computer. The camera predomi-
nantly focused on G.M.’s private parts, and captures Beith
expressing a sexual attraction to the girls. On subsequent
occasions, Beith brought G.M. alone to his house to engage
in kissing and fondling. Then he began to increase the
intimacy of the relationship by disclosing confidences about
his sexual experience and loss of virginity.
On April 23, 2001, Beith was scheduled to take several
students, including G.M., on a church-sponsored retreat at
a camp in Michigan. During the early morning hours of
April 24, 2001, while on the retreat, Beith allowed G.M. and
2
(...continued)
suaded his wife that his conduct occurred as G.M. had attempted
to wake him from an alcohol-induced slumber. However, Henry
Waddell, the husband of G.M.’s teacher, testified before the grand
jury that his wife had told him that G.M. had recanted these alle-
gations in the presence of her parents.
4 No. 03-2530
one of her friends into his cabin and onto his bed with him.
In the presence of the friend, Beith fondled and kissed G.M.
In the early morning of the next day, G.M. came to Beith’s
cabin alone, where he invited her into his bed and at-
tempted to have unprotected sexual intercourse with her.
During the drive back to Indiana, Beith sat with G.M. on
the bus and began discussing with her the possibility of
running away together.
On April 27, 2001, Beith picked G.M. up from her house
after she had been left home alone. He took her to his
residence, where he again fondled and kissed her. He also
renewed discussions of leaving the Academy and running
away with her, revealing (in either this conversation or a
previous one) that his destination was Las Vegas, Nevada.
At the end of the evening, around 11:00 p.m., he dropped
her off in the alley behind her home.
Soon thereafter, the illicit relationship would be exposed.
During a family birthday dinner at a local restaurant on
April 29, 2001, G.M. excused herself from the table to call
Beith. During the conversation, Beith again asked her to run
away with him. Upon returning to the table after the call,
G.M. was pressed by a young family friend to reveal whom
she had called. In response, G.M. disclosed to the friend the
intimate details of her relationship with Beith. The young
friend was so disturbed by the revelation that she passed
along the information to G.M.’s parents, who in turn took
G.M. to the hospital the next day to be examined for sexual
molestation. In the course of the examination, G.M. informed
a nurse that Beith had indeed attempted sexual intercourse
with her. That information was then relayed to G.M.’s
parents, who subsequently took G.M. to the Lake Station
Police Department to be interviewed. At the conclusion of
the interview, G.M. and her parents understood that the
police intended to question and possibly arrest Beith.
After leaving the police station, G.M.’s parents stopped at
a Wal-Mart store. While at the store, G.M. slipped away
No. 03-2530 5
from her parents to call Beith and warn him that the police
were on to him and would come calling later that day. In
response, Beith told G.M. that he was leaving town and
again asked that she come with him. He then arranged for
her to meet him at a location near the Wal-Mart. Once at
the designated meeting ground, G.M. got into Beith’s vehicle
without any resistance and the two drove away headed for
Las Vegas.
Along the way to Las Vegas, Beith made several stops al-
lowing G.M. to shop. He also made several stops for over-
night stays at hotels, where he repeatedly engaged G.M. in
unprotected sexual intercourse. The two also discussed
having a baby together, as Beith thought it a “good idea.” In
addition, he suggested to G.M. on more than one occasion
that perhaps he should take her home and then kill himself.
On May 8, 2001, Beith was arrested by Las Vegas Police
in the parking lot of a hotel in which he was staying with
G.M. Later, during an interview with the FBI, Beith ad-
mitted taking G.M. and engaging in inappropriate sexual
contact with her, but insisted that it was G.M. who had af-
firmatively pursued the relationship. He also stated that
G.M. was at all times during their travels free to leave him.
A federal grand jury sitting in the Northern District of
Indiana returned a two count indictment charging Beith
with aggravated sexual abuse in violation of 18 U.S.C.
§§ 2241(c) and 2246. Subsequently, on or about June 21,
2002, the United States Attorney’s Office for the Northern
District of Indiana returned a one count information
against Beith, charging him with transporting a child under
the age of 18 across state lines with the intent to engage in
prohibited sexual contact in violation of 18 U.S.C. § 2423(b).
On July 1, 2002, in consideration for the government’s
motion to dismiss the charges of aggravated sexual abuse,
Beith pled guilty to the charges under 18 U.S.C. § 2423(b)
and admitted to knowing that G.M. was 11 years old, kiss-
6 No. 03-2530
ing and fondling her on several occasions, attempting to
have sexual intercourse with her at the retreat, driving her
from Indiana to Nevada, and engaging her in sexual inter-
course throughout their travels. Section 2423(b) provides for
a maximum sentence of 180 months.
A presentence report (PSR) was prepared using the 2001
edition of the United States Sentencing Guidelines, recom-
mending that the district court apply a base offense level of
27 for the violation of 18 U.S.C. § 2423(b) pursuant to
U.S.S.G. § 2A3.1 (by way of the criminal sexual assault
cross reference, U.S.S.G. § 2A3.2(c)(1), triggered when the
victim is under the age of 12). It also recommended a 4-level
enhancement pursuant to § 4A3.1(b)(2)(A), applicable where
the victim had not attained the age of twelve years; a 2-level
enhancement pursuant to U.S.S.G. § 2A3.1(b)(3), applicable
where the victim was in the custody, care, or supervisory
control of the defendant; a 4-level enhancement pursuant to
U.S.S.G. § 2A3.1(b)(5), applicable where the victim was
abducted; and a 2-level enhancement pursuant to U.S.S.G.
§ 3A1.1(b)(1), applicable where the victim was unusually
vulnerable. Altogether, the PSR recommended a total
offense level of 39.
On the day of the sentencing hearing, Beith withdrew all
his objections to the PSR, with the exception of those assert-
ing double counting in the application of U.S.S.G. § 2A3.1 to
his offense conduct; the application of the abduction
enhancement; and the application of the vulnerable victim
enhancement. He did not object to the enhancement based
on his custody, care, or supervisory control of G.M., nor did
he object to the factual statements in the PSR, which the
court adopted.
Beith was sentenced on May 28, 2003, and the district court
rejected each of his outstanding objections to the increase
of his sentence, specifically concluding that calculation of
his sentence under U.S.S.G. § 2A3.1 would not constitute
double counting. It further found, by a preponderance of the
No. 03-2530 7
evidence, that the § 2A3.1(b)(5) abduction enhancement
should be applied to Beith’s guideline calculation because
his conduct toward G.M. amounted to “inveigling and
grooming.” The court also found, by a preponderance of the
evidence, that the § 3A1.1(b)(1) vulnerable victim enhance-
ment applied because Beith had pursued the illegal rela-
tionship with G.M. after being told that her father had
subjected her to sexual misconduct. The district court then
granted Beith a 3-point reduction for his acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1, leaving him
with a total offense level of 36. Falling within criminal
history category I, the Guidelines provided a sentencing
range of 188 to 235 months imprisonment. However, the
statutory maximum sentence for his crime of conviction was
180 months; therefore, the court sentenced him to the
statutory maximum term. On appeal, Beith contests all
enhancements save the 2-point enhancement for having
supervisory control over the victim.
II. ANALYSIS
Beith raises several challenges to his sentence, which pri-
marily attack the propriety of the district court’s application
of the United States Sentencing Guidelines. He also
contends that his sentence is unconstitutional in light of the
Supreme Court’s recent pronouncement in United States v.
Booker, 125 S. Ct. 738 (2005). We begin by addressing the
district court’s application of certain guidelines provisions.
A. Application of U.S.S.G. § 2A3.1 Was Appropriate
Beith first asserts that he was improperly sentenced under
§ 2A3.1 contending that his crime is properly characterized
as statutory rape and therefore falls within the purview of
§ 2A3.2. This assertion should be rejected for two reasons.
First, the criminal sexual abuse cross reference expressly
8 No. 03-2530
directed the district court to apply § 2A3.1, as opposed to
§ 2A3.2, because Beith committed sexual abuse pursuant to
§ 2241(c) and G.M. “had not attained the age of 12 years.”
U.S.S.G. § 2A3.2(c)(1). A defendant who pleads guilty to a
violation of 18 U.S.C. § 2423(b)3 may be sentenced under
the statutory rape offense guideline, U.S.S.G. § 2A3.2, which
applies to sexual abuse of a minor under the age of 16 and
sets the base offense level at 24. See U.S.S.G. § 2A3.2(a)(1)
(defining sexual abuse as “the commission of a sexual act” or
“sexual contact”). However, under § 2A3.2’s cross reference,
“if the offense involved criminal sexual abuse or attempt to
commit criminal sexual abuse (as defined in 18 U.S.C.
§ 2241 or § 2242)” or “[i]f the victim had not attained the age
of 12 years,” the defendant must be sentenced pursuant to
§ 2A3.1, which carries a base offense level of 27. U.S.S.G.
§ 2A3.2(c)(1).4 The cross reference also explicitly negates the
defense of consent. Id. Beith cites United States v. Morris, 204
F.3d 776, 777-78 (7th Cir. 2000), for the proposition that
violations of the federal statutory rape statute, § 2423(b),
absent the use of force, require a defendant to be sentenced
under § 2A3.2. However, the victim in Morris was over the
age of 12 and therefore did not trigger the cross reference.
3
Title 18 U.S.C. § 2423(b) states “[a] person who travels in in-
terstate commerce . . . for the purpose of engaging in any illicit
sexual conduct with another person shall be fined under this title
or imprisoned not more than 30 years, or both.” “Illicit sexual con-
duct” is defined as “a sexual act . . . with a person under 18 years
of age . . . .” 18 U.S.C. § 2423(f).
4
Criminal sexual abuse encompasses both “intent to engage in a
sexual act with a person who has not attained the age of 12 years,”
as well as “knowingly” engaging in such conduct. 18 U.S.C.
§ 2241(c). Section 2241, however, also encompasses aggravated
sexual assault accomplished by force, threat, or other means. Id.at § 2241(a) & (b). Section 2242 prohibits sexual abuse of one “in-
capable of appraising the nature of the conduct” or “physically
incapable of declining” to take part in the act. Id. at § 2242.
No. 03-2530 9
Id. at 777. As G.M. was 11 years of age during the commis-
sion of the crime, Morris is inapposite.
Second, though Beith pled guilty to a violation of § 2423(b)
(traveling with a minor for the purpose of engaging in sexual
intercourse) as opposed to § 2241(c) (criminal sexual abuse),
his offense of conviction is not determinative of his offense
guideline. See United States v. Angle, 234 F.3d 326, 345 (7th
Cir. 2000) (“[T]he term ‘offense’ is defined broadly to include
not only ‘the offense of conviction’ but also all conduct deemed
relevant by §1B1.3.”). See also U.S.S.G. § 1B1.2(a) (“[I]n the
case of a plea agreement . . . containing a stipulation that
specifically establishes a more serious offense than the
offense of conviction, determine the offense guideline section
in Chapter Two applicable to the stipulated offense.”).5 The
district court was free to consider relevant conduct—to
which Beith admitted—when determining which offense
guideline most appropriately reflected the scope of his crim-
inal activity. See U.S.S.G. § 1B1.3; United States v. Vang,
128 F.3d 1065, 1073 (7th Cir. 1997) (affirming use of § 2A3.1
as offense guideline for sentencing defendant convicted of
violating § 2324(b) because defendant used force during the
commission of the sexual assault meriting application of
§ 2A3.1 as opposed to § 2A3.2); United States v. Pollard, 986
5
In his plea agreement Beith acknowledged that he engaged in
sexual intercourse with G.M. who was 11 years of age, which con-
stitutes criminal sexual assault as defined by 18 U.S.C. § 2241(c).
See United States v. Morgan, 164 F.3d 1235, 1238-39 (9th Cir. 1999)
(upholding the applications of § 2A3.1 when the defendant pleaded
guilty to violating 18 U.S.C. §§ 1153(a) and 2244(a), but admitted
in his plea agreement that he engaged in sexual intercourse with
the victim while she was passed out and therefore incapacitated);
United States v. Lucas, 157 F.3d 998, 1002-03 (5th Cir. 1998)
(reversing a district court’s determination to apply § 2A3.3 and
remanding for application of § 2A3.1 as the defendant’s stipulated
conduct amounted to a violation of 18 U.S.C. § 2241 based on his
use of force).
10 No. 03-2530
F.2d 44, 47 (3d Cir. 1993) (affirming use of § 2A3.1 guideline
when defendant convicted of kidnaping also sexually assaulted
victim). Therefore, based on § 2A3.2’s cross reference as
well as the scope of relevant conduct to which he admitted,
the district court could properly sentence Beith pursuant to
§ 2A3.1.
B. The District Court Did Not Impermissibly Double
Count
Having found that Beith could properly be sentenced
under § 2A3.1, we now turn to Beith’s argument that the
use of the victim’s age to support both the application of
§ 2A3.1, which carries a higher base offense level, and an
enhancement pursuant to § 2A3.1(b)(2)(A), amounts to im-
permissible double counting. Beith’s argument is superfi-
cially attractive in that G.M.’s age had the substantive
effect of raising his base offense level three points (if G.M.
were over the age of 12, the cross reference would have been
inapplicable and Beith’s base offense level would have been
24 pursuant to § 2A3.2) and then subsequently enhancing
his offense level four points based on that same factor.6 The
district court rejected Beith’s challenge to his sentence,
reasoning that the Guidelines must be read as a whole and
6
Several of our sister circuits have rejected parallel double coun-
ting arguments. See United States v. Cole, III, 359 F.3d 420, 426-28
(6th Cir. 2004) (applying § 2A3.1 as offense guideline, pursuant to
kidnaping cross reference, § 2A4.1(b)(7)(A), because the victim was
abducted and sexually assaulted and then enhancing defendant’s
sentence under § 2A3.1(b)(5) for abduction); United States v.
Archdale, 229 F.3d 861, 868-69 (9th Cir. 2000) (reasoning that
district court properly sentenced defendant under § 2A3.1, pur-
suant to the sexual assault cross reference in § 2A3.2(c)(1) based
on the use of force and also properly enhanced defendant’s sen-
tence under § 2A3.1(b)(1) for the use of force); United States v.
Lewis, 115 F.3d 1531, 1536-37 (11th Cir. 1997) (same as Cole III).
No. 03-2530 11
explicitly permit G.M.’s age to be used twice. See U.S.S.G.
§§ 1B1.1, application note 4(A), (B), & 1B1.5(a).
We reject appellant’s argument for several reasons. First,
the plain language of the Guidelines expressly directs this
result. Second, the application of § 2A3.1 (base offense level
of 27) over § 2A3.2 (base offense level of 24) does not amount
to an “increase” or enhancement, as the Guidelines must be
applied as a whole. Finally, the bar on double counting is
not implicated because the Sentencing Commission in
setting the base offense level for § 2A3.1 did not account for
the victim’s age.
Generally, impermissible double counting occurs when
identical conduct justifies two upward adjustments under
the Guidelines. United States v. Haines, 32 F.3d 290, 293
(7th Cir. 1994). Put another way, a district court may not
describe the same conduct in two different ways to justify
two upward adjustments. United States v. Salyers, 160 F.3d
1152, 1163-64 (7th Cir. 1998); United States v. Williams, 106
F.3d 1362, 1367 (7th Cir. 1997); United States v. Compton,
III, 82 F.3d 179, 183 (7th Cir. 1996). This court recognizes
that some factual overlap may occur, “so long as there is suf-
ficient factual basis for each [upward adjustment],” Haines,
32 F.3d at 293-94, and the court does not “dr[a]w from the
same well,” United States v. Kopshever, 6 F.3d 1218, 1224
(7th Cir. 1993). “A district court does not engage in double
counting when it enhances a defendant’s sentence for separate
elements of the same act . . . .” United States v. Burke, 125
F.3d 401, 405 (7th Cir. 1997). Compare Kopshever, 6 F.3d at
1224 (finding double counting where the district court
enhanced defendant’s sentence based on the vulnerability
of the victims, pursuant to § 3A1.1, and the unusually ser-
ious psychological harm suffered by the victims, pursuant
to § 5K2.3 as both enhancements involved the same under-
lying conduct) with United States v. Myers, 355 F.3d 1040,
1044 (7th Cir. 2004) (rejecting double counting argument of
a defendant convicted of knowingly receiving materials
12 No. 03-2530
depicting a child engaged in “sexually explicit conduct,” pur-
suant to 18 U.S.C. § 2252, as two-point enhancement, pur-
suant to § 2G2.2(b)(1), was premised on child’s prepubes-
cence and the four-point enhancement, pursuant to
§ 2G2.2(b)(3), was premised on the “sadistic conduct” con-
veyed in video of child which depicted actions which would
inflict pain upon the child).
“[D]ouble counting is permissible unless the guidelines
expressly provide otherwise or a compelling basis exists for
implying such a prohibition.” United States v. Harris, 41 F.3d
1121, 1123 (7th Cir. 1994). According to the plain language
of the Guidelines, as discussed above, a defendant must be
sentenced pursuant to § 2A3.1 if the victim of his sexual
abuse is under 12 years of age and then subsequently en-
hanced four points based on the same element. U.S.S.G.
§ 2A3.1(b)(2)(A). Absent a clear statement by the Guidelines
that such an element may not be used twice, we will apply
the Guidelines as written. See United States v. Jimenez, 897
F.2d 286, 287 (7th Cir. 1990) (reasoning that “where the
Guidelines except an element of the crime from enhancing
a sentence, their intent is expressly stated” and listing
§ 3A1.1 app. note. 2, § 3B1.3, and § 3C1.1 as examples of
express prohibition).
Moreover, it is perfectly rational for the Guidelines to
treat sexual assault against victims under the age of 12
with more severity.7 By enhancing a defendant’s base of-
fense level two points for a victim between the age of 12 and
7
In United States v. Shannon, 110 F.3d 382, 387 (7th Cir. 1997)
(en banc), this court recognized the increased dangers associated
with a victim so young. We reasoned that “[a] 13 year old is un-
likely to have a full appreciation of the disease and fertility risks
of intercourse, an accurate knowledge of contraceptives and dis-
ease-preventive measures, and the maturity to make a rational
comparison of the costs and benefits of premarital intercourse.” Id.No. 03-2530 13
16, § 2A3.1(b)(2)(B), and four points for a victim under the
age of 12, § 2A3.1(b)(2)(A), the guidelines reflect a “gradu-
ated adjustment scheme,” United States v. Sorensen, 58
F.3d 1154, 1161 (7th Cir. 1995), which treats egregious con-
duct more harshly. See U.S.S.G. § 2A3.1 cmt. background
(“An enhancement is provided when the victim is less than
sixteen years of age. An additional enhancement is pro-
vided where the victim is less than twelve years of age.”)
(emphasis added).
Beith’s argument that his offense level was “increased”
twice based on the victim’s age must also be rejected. As the
district court noted, the Guidelines must be read as a
whole. “A cross reference (an instruction to apply another
offense guideline) refers to the entire offense guideline (i.e.,
the base offense level, specific offense characteristics, cross
references and special instructions).” U.S.S.G. § 1B1.5(a).
Application of the cross reference or the determination of
the appropriate offense guideline based on the relevant
conduct inquiry does not “increase” a defendant’s offense
level. It merely sentences him under the offense guideline
which reflects the full scope of his conduct. U.S.S.G. §§ 1B1.1
app. note 4(A). Accord United States v. Sanchez, 354 F.3d
70, 78-79 (1st Cir. 2004) (reasoning that once a court deems
a cross reference applicable, it must proceed to the new
offense guideline and apply it as written); United States v.
Valdez-Torres, 108 F.3d 385, 389 n.7 (D.C. Cir. 1997)
(rejecting argument that applying proper offense guideline
with a higher base offense level may be characterized as
“increasing” base offense level).
Finally, we cannot say that the Guidelines fully accounted
for the degree of harm caused in light of G.M.’s age when it
set the base offense level for § 2A3.1, such that a subse-
quent enhancement for age would constitute double count-
ing. According to the commentary to § 2A.3.1, “[t]he base
offense level represents sexual abuse as set forth in 18
U.S.C. § 2242.” U.S.S.G. § 2A3.1 cmt. background. Section
2242 prohibits sexual abuse of a victim otherwise incapable
14 No. 03-2530
of understanding or declining the defendant’s actions. This
guideline does not provide for an additional enhancement
based on a victim’s incapacitation. By expressly defining the
scope of the conduct accounted for in the base offense level,
the Guidelines are clear that the base offense level does not
expressly account for age while it does account for a victim’s
incapacitation.
This court has applied similar logic concerning the use of
conduct to apply an enhancement which encompasses an
element of the offense of conviction, concluding that “[t]he
bar on double counting comes into play only if the offense
itself necessarily includes the same conduct as the enhance-
ment.” United States v. Senn, 129 F.3d 886, 897 (7th Cir.
1997) (emphasis in original); United States v. Ford, 21 F.3d
759,765 (7th Cir. 1994) (“[T]he base offense level prescribed
by the guidelines for a particular crime presumably reflects,
or ‘includes,’ those characteristics considered by Congress
to inhere in the crime at issue.”) (quoting United States v.
Butt, 955 F.2d 77, 89 (1st Cir. 1992)). Accord United States
v. Reese, 2 F.3d 870, 895 (9th Cir. 1993) (“[T]he use of a
single aspect of conduct both to determine the applicable
offense guideline and to increase the base offense level
mandated thereby will constitute impermissible double
counting only where, absent such conduct, it is impossible
to come within that guideline.”). For example, in United
States v. Wimberly, 60 F.3d 281, 288 (7th Cir. 1995), we
held that a defendant convicted of the criminal sexual
assault of an individual under the age of 12, pursuant to 18
U.S.C. § 2241(c), was not subject to double counting when
the district court also enhanced his offense level four points
based on the victim’s age, pursuant to § 2A3.1(b)(2)(A). We
reasoned that because the § 2A3.1(b) enhancements apply
to convictions under both § 2241 and § 2242—and, signifi-
cantly, a violation of § 2242 does not require the victim to be
under the age of 12—these enhancements “account for more
No. 03-2530 15
egregious conduct” and thus were drafted “as punishment
mechanisms distinct from the underlying offense.” Id.
Accord United States v. Balfany, 965 F.2d 575, 584 (8th Cir.
1992) (rejecting parallel argument reasoning that “[t]he
Sentencing Commission obviously intended that the age of
the victim and other elements of aggravated sexual assault
be addressed through enhancements of the base offense level”);
United States v. Ransom, 942 F.2d 775, 778-79 (10th Cir.
1991) (same).8 For these reasons, Beith’s sentence could
8
Though not addressing the precise question presented by Beith,
in United States v. Sorensen, 58 F.3d 1154, 1160-61 (7th Cir. 1995),
this court found no double counting when the district court ap-
plied the aggravated assault offense guideline, § 2A2.2, based on
the “involvement” of a dangerous weapon in the commission of
a crime, and then subsequently enhanced the defendant’s sen-
tence, pursuant to § 2A2.2(b)(2)(B), based on the “use” of the dan-
gerous weapon in the commission of the crime. We also rejected
the defendant’s second double counting argument concerning the
use of the victim’s status as a federal officer. We found that dif-
ferent conduct supported the application of the offense guideline
(i.e., the victim’s status as a federal officer) and the enhancement
(i.e., the fact that the defendant’s actions were motivated by the
victim’s status). Id. Accord United States v. Johnstone, 107 F.3d
200, 212 (3d Cir. 1997); Valdez-Torres, 108 F.3d at 389; Reese,
2 F.3d at 896; United States v. Williams, 954 F.2d 204, 207 (4th
Cir. 1992). But see United States v. Farrow, 198 F.3d 179, 195 (6th
Cir. 1999) and United States v. Hudson, 972 F.2d 504, 506-07 (2d
Cir. 1992) (finding double counting when a defendant is sentenced
under the aggravated assault guideline based on the “involvement”
of a weapon that is not inherently dangerous and is also subse-
quently enhanced based on the “use” of that weapon because there
is no real distinction between “involvement” and “use” of weapons
which are inherently non-dangerous, such as chairs or automobiles,
as it is their use that makes them dangerous). The government
cites Sorensen for the proposition that the Guidelines invite certain
types of double counting; however, in Sorensen we rejected the
(continued...)
16 No. 03-2530
properly be enhanced four points based on G.M.’s age.
C. Vulnerable Victim Enhancement Was Not
Appropriate
Beith next challenges the district court’s decision to en-
hance his sentence two points pursuant to § 3A1.1(b)(1)
based on the district court’s conclusion that G.M. was “par-
ticularly susceptible to criminal conduct.” The district court
based its decision upon the following findings:
The victim had previously disclosed to Defendant
allegations of misconduct directed to her by her
father. Defendant’s Exhibit D at Pages 13 and
14. . . . [W]hether the underlying conducts actually
occurred remains unknown, it is undisputed that the
victim claimed that she had been subject to miscon-
duct. The victim was upset by her family problems
and even cursed her father in the Defendant’s video-
tapes of the victim. See Government’s Exhibits 9 and
14. The defendant did not discourage the victim’s be-
havior when she was repeatedly cursing her father.
The defendant knew this and stepped up his conduct
with the victim after learning these facts. When
Defendant was confronted by Ms. Waddell about the
amount of time the [victim] was missing, he explained
that he was counseling her regarding family prob-
lems. Defendant’s Exhibit D at 16.
8
(...continued)
defendant’s double counting arguments because we found that the
conduct which supported the application of the offense guideline
and the subsequent enhancement was in fact distinct. Here, where
it is only the victim’s age which supports both application of the
offense guideline and a subsequent enhancement under that new
guideline, Sorensen is instructive but not conclusive.
No. 03-2530 17
Sent. Tr. II at 83-84 (emphasis added). Assuming that the
facts upon which the enhancement was based were properly
found, see United States v. Booker, 125 S. Ct. 738 (2005), the
district court’s determination that the victim was “unusually
vulnerable” is reviewed here for clear error, see United States
v. Parolin, 239 F.3d 922, 926 (7th Cir. 2001).
Section 3A1.1(b)(1) provides that a defendant’s base offense
level should be increased two points “[i]f the defendant knew
or should have known that a victim of the offense was a
vulnerable victim.” The purpose of this enhancement is to
punish a defendant for taking advantage of victims who are
less able or likely to protect themselves from criminal
conduct. United States v. Grimes, 173 F.3d 634, 637 (7th
Cir. 1999); United States v. Lallemand, 989 F.2d 936, 939
(7th Cir. 1993). A victim may be vulnerable due to “age,
physical or mental condition,” or may be “otherwise parti-
cularly susceptible to the criminal conduct.” U.S.S.G. § 3A1.1
app. note 2. This enhancement is inapplicable “if the factor
that makes the person a vulnerable victim is incorporated
in the offense guideline. For example, if the offense guide-
line provides an enhancement for the age of the victim, this
subsection would not be applied unless the victim was
unusually vulnerable for reasons unrelated to age.” Id.
While it is no longer necessary to prove that the defendant
targeted the victim based on his or her vulnerability, the
government still has the burden of proving the particular
characteristic of the victim which makes him or her vul-
nerable. United States v. Paneras, 222 F.3d 406, 413 (7th
Cir. 2000).
As Beith’s sentence had already been enhanced based on
G.M.’s age, the district court properly segregated that factor
from its discussion concerning vulnerability. However, the
court failed to make any findings concerning whether G.M.
was in fact molested by her father. During the first sentenc-
ing hearing the defendant stipulated that he was “made
aware of allegations regarding prior molestation.” Sent. Tr.
18 No. 03-2530
I at 5 (emphasis added). The defendant, however, maintains
that G.M. recanted, while the government argues that she
sustained her accusation. Victims of molestation and sexual
assault certainly qualify as vulnerable victims, see United
States v. Snyder, 189 F.3d 640, 649 (7th Cir. 1999) (victim
had a history of molestation); United States v. Newman, 965
F.2d 206, 211 (7th Cir. 1992) (20-year-old victim was raped
at 15); United States v. White, 979 F.2d 539, 544 (7th Cir.
1992) (victim lived in group home and had a history of
sexual abuse), as do those found to have mental or severe
emotional problems, see, e.g., United States v. Romero, 189
F.3d 576, 590 (7th Cir. 1999) (victim was an adopted child
under the treatment of a psychiatrist for Attention Deficit
Disorder and had a history of emotional problems). How-
ever, the district court did not find that G.M. was in fact a
victim of molestation or that she had severe emotional
problems. The court seems to imply that a child who alleges
molestation, whether verified or not, is vulnerable. We
cannot agree. Given the fact that G.M.’s age had already
been the subject of an enhancement, her allegations of
molestation standing alone are insufficient to establish
vulnerability.9
9
Though the district court adopted the findings in the PSR, the
PSR states only that:
[S]ometime in late February, early March, G.M. confided
to the defendant that her father had inappropriately
touched her breast and her bottom when he was drunk.
Initially, Mr. Beith directed G.M. to tell her mother. In
reality, G.M. did not inform her mother. Approximately
a month later, in a meeting with G.M.’s mother regarding
tutoring, Beith brought up the topic of G.M.’s father
touching her. At that time, she was shocked to learn of the
allegation and she immediately confronted her husband.
G.M.’s mother indicates that she believes her daughter’s
(continued...)
No. 03-2530 19
Without a finding from the lower court that sufficient
evidence exists to substantiate the allegations of molesta-
tion, or that G.M. was suffering from severe emotional prob-
lems, we are left with findings that G.M. was having family
problems and was seen cursing her father. Unfortunately,
family discord is common among victims such as G.M. See
United States v. Williams, 291 F.3d 1180, 1196 (9th Cir. 2002)
(upholding application of enhancement where district court
found that victim had a mental condition and was previously
raped but reversing application of enhancement based on
victim’s unstable personal life and a chemical dependency
as the latter victim’s characteristics were typical of Mann
Act (18 U.S.C. § 2423) victims); see also United States v.
Evans, 285 F.3d 664, 672 (8th Cir. 2002) (reasoning that a
finding of vulnerability should be based on a factor/char-
acteristic which is unusual to victims of the underlying
offense); United States v. Footman, 66 F. Supp. 2d 83, 96 (D.
Mass. 1999) (same) (citing United States v. Sabatino, 943
F.2d 94, 103 (1st Cir. 1991)). A finding of family problems,
therefore, is not sufficient to support this enhancement.
And this is to say nothing of the impropriety of increasing
Beith’s sentence based on facts neither jury proven nor
defendant admitted under the mandatory scheme that once
was the Guidelines. See Booker, 125 S. Ct. at 756. Accord-
ingly, and notwithstanding our distaste for the particular
heinousness of his crime, we must vacate Beith’s sentence
and remand this case for a determination of whether the
record supports a finding that G.M. was in fact vulnerable.
Having decided to vacate and remand Beith’s sentence,
we note that when the district court imposes its new sen-
9
(...continued)
accusation but thinks her husband’s conduct was a result
of his drinking problem, and not that he touched her for
his own gratification.
PSR at ¶ 14. However, it is clear from the court’s findings that it
did not find that the molestation actually occurred.
20 No. 03-2530
tence upon remand, it must do so in accord with Booker, as
Booker decidedly governs all sentences imposed after its
date of decision. So if the district court again contemplates
exercising its discretion to increase Beith’s sentence, it
must first concentrate its attention on the universe of sen-
tencing factors and policy concerns memorialized by Justice
Breyer’s remedial opinion (Booker, 125 S. Ct. at 764-66) and
18 U.S.C. § 3553(a).
D. Abduction Enhancement Was Not Appropriate
Beith also challenges the district court’s application of an
abduction enhancement pursuant to U.S.S.G. § 2A3.1(b)(5)
(providing for a 4-level increase where the victim was ab-
ducted). The Guidelines define abduction as “forcing” a vic-
tim to accompany an offender to a different location.
U.S.S.G. § 1B1.1 app. note 1(a). This court equates abduc-
tion to kidnaping, reasoning that physical force is not
necessary to kidnap or abduct. Romero, 189 F.3d at 590.
“Inveigling,” or imposing one’s will through “trickery” or
“gentle urging” or flattery, is a proper basis for applying the
enhancement. Id. (adopting reasoning of United States v.
Saknikent, 30 F.3d 1012, 1014 (8th Cir. 1994)); see also
United States v. Hefferon, 314 F.3d 211, 226-27 (5th Cir.
2002) (finding abduction where the defendant appealed to
a seven year old’s obedience to adults to lure her to a se-
cluded place to force her to perform oral sex). Here, the
district court found that Beith abducted G.M. through the
process of inveigling. To support its finding of inveigling,
the district court found that Beith: (1) spent a “considerable
amount of time with [G.M.]”; (2) gave her special privileges
in school by allowing her to spend time in his office and giv-
ing her passes when she was late to class; (3) took G.M. to
his home on several occasions; (4) videotaped her; (5) had
inappropriate conversations with her about him no longer
being a virgin; (6) gave her a pendant and his watch; and,
No. 03-2530 21
(7) told the victim he would commit suicide if she left him.
Again, assuming all penultimate facts were properly found,
see United States v. Booker, 125 S. Ct. 738 (2005), we review
the district court’s ultimate finding that Beith abducted
G.M. for clear error. United States v. Vang, 128 F.3d 1065,
1073 (7th Cir. 1997) (reviewing factual finding for clear
error).
Beith argues that his actions do not rise to the level of
“inveigling” because he did not “deceive” or “trick” G.M. into
leaving with him. He relies on Romero, in which this court
found abduction by inveigling where the defendant lied to
the victim about his identity over the Internet to gain the
child’s confidences and convince him to flee with the
defendant. While he argues that all the “abduction
by inveigling” cases thus far have involved in some form a
deception, it does not necessarily follow that “inveigling”
under the Guidelines requires deceit or trickery.
Nonetheless, we find that the evidence could not support
a finding of “abduction by inveigling.” Recall that it was
G.M. who called to warn Beith of the police’s intent to inter-
view and possibly arrest him. The factual findings suggest
that Beith’s reprehensible actions were not so much con-
centrated toward imposing his will over G.M. in absconding
to Las Vegas as they were motivated toward cultivating a
sincere—albeit perverse and illegal—relationship. Indeed,
he made no false promises to her, and his overtures, while
undeniably vile, were cloaked in neither deceit nor trickery.
At most, the findings upon which the district court based
the abduction enhancement suggest that Beith endeavored
to develop G.M.’s trust—a trust that he would ultimately
abuse. This behavior also merits punishment, and for it the
district court has already obliged by enhancing his sentence
pursuant to U.S.S.G. § 2A3.1(b)(3) (the enhancement based
on his custody and supervisory control over G.M. as her
22 No. 03-2530
principal).10 But we find no tenable connection between the
manner in which Beith pursued G.M. in molesting her and
his ultimate act of driving her to Nevada that could justify
a finding of abduction. Accordingly, additional enhancement
under the rubric of “abduction by inveigling” is inappropri-
ate here, and thus provides another ground for vacating
sentence and remand.
Furthermore, with the Supreme Court’s recent pro-
nouncement in United States v. Booker, 125 S. Ct. 738(2005), the district court’s basis for imposing the abduction
enhancement has been compromised. Here, the district court
erred both by increasing Beith’s sentence—via the obstruc-
tion of justice enhancement—based on facts neither admitted
by himself nor proven to a jury beyond a reasonable doubt,
id. at 756 (holding that under the formerly mandatory
Guidelines regime, “[a]ny fact (other than a prior convic-
tion) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt”), and through
its mandatory application of the Guidelines in imposing his
sentence, see id. at 757, 769 (remedying the Guidelines by
rendering them “effectively advisory,” and allowing for
resentencing notwithstanding the absence of a Sixth
Amendment violation in a case where Guidelines
mandatorily imposed); United States v. White, No. 03-2875,
2005 WL 1023032, at *7 (7th Cir. May 3, 2005); United States
v. Castillo, Nos. 02-3584, et al., 2005 WL 1023029, at *15
(7th Cir. May 3, 2005); United States v. Schlifer, No. 04-3398,
2005 WL 774914 (7th Cir. Apr. 7, 2005). However, Beith did
not raise a Booker issue (nor any related Sixth Amendment
challenge, see, e.g., Blakely v. Washington, 124 S. Ct. 253110
U.S.S.G. 2A3.1(b)(3) provides: “If the victim was (A) in the cus-
tody, care, or supervisory control of the defendant . . . increase by
2 levels.”
No. 03-2530 23
(2004); Apprendi v. New Jersey, 530 U.S. 466 (2000)) before
the district court. Therefore, our review would be for “plain
error” only. See United States v. Paladino, 401 F.3d 471,
481 (7th Cir. 2005); see also United States v. Olano, 507 U.S.
725, 731 (1993); Booker, 125 S. Ct. at 769 (directing review-
ing courts presented with Sixth Amendment objections based
on Booker and the line of cases from which it was derived
“to apply ordinary prudential doctrines, determining, for
example, whether the issue was raised below and whether
it fails the ‘plain-error’ test”); Fed. R. Crim. P. 52(b) (“A
plain error that affects substantial rights may be considered
even though it was not brought to the court’s attention.“).
Because we find grounds to remand this case for resen-
tencing independent of his Booker challenge (namely, evi-
dence insufficient to support imposition of the vulnerable
victim and abduction enhancements), we need not delve
into a detailed plain error analysis or the particular merits
of Beith’s Booker claim. By remanding Beith’s case for
resentencing, we send it out into a sentencing world now
governed by Booker—a world in which sentencing judge and
resentencing judge alike cannot escape the binding pre-
scriptions of the Court’s recent pronouncement.
III. CONCLUSION
For the reasons stated above, we VACATE Beith’s sentence
and REMAND his case for resentencing consistent with this
opinion and the Supreme Court’s recent decision in
United States v. Booker, 125 S. Ct. 738 (2005).
24 No. 03-2530
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-16-05