1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-13-1997

United States v. Cruz

Precedential or Non-Precedential:

Docket 96-1325

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"United States v. Cruz" (1997). 1997 Decisions. Paper 37.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/37
1

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

_________________ 

NO. 96-1325 

_________________ 

UNITED STATES, 

 Appellee 

v. 

ANDRE CRUZ, 

a/k/a ANTHONY TORRES, 

a/k/a ANTHONY ZAYAS 

 Andre Cruz, Appellant

__________________________________________ 

On Appeal From the United States District Court 

For the Eastern District of Pennsylvania 

D.C. Crim. No. 95-cr-00532 

__________________________________________ 

Argued: December 10, 1996 

Before: BECKER, MANSMANN, and GREENBERG 

(Filed: February 13, 1997) 

THOMAS R. QUINN, ESQUIRE (ARGUED) 

12 South 12th Street 

2940 PSFS Building 

Philadelphia, PA 19107 

Attorney for Appellant

MICHAEL R. STILES, ESQUIRE 

United States Attorney 

WALTER S. BATTY, JR., ESQUIRE 

Assistant United States Attorney 

Chief of Appeals 

J. ALVIN STOUT, III, ESQUIRE 

Assistant United States Attorney 

ROBERT K. REED, ESQUIRE (ARGUED) 

Assistant United States Attorney 

Suite 1250 

615 Chestnut Street 

Philadelphia, PA 19106 

Attorneys for Appellee
2

 __________________________ 

 OPINION OF THE COURT 

 ____________________________ 

BECKER, Circuit Judge. 

 The sentencing appeal of defendant Andre Cruz, 

following his conviction pursuant to a plea of guilty to 

carjacking, 18 U.S.C. § 2119, requires us to construe two facets 

of the vulnerable victim provisions of § 3A1.1(b) of the 

Sentencing Guidelines. First, we must determine whether the 

vulnerable victim enhancement applies to harm caused by the 

defendant to someone who was not the victim of the offense of 

conviction. Second, we must decide whether the adjustment can be 

made if the defendant did not target (or commit the offense 

because of) the vulnerable status of the victim. 

 Although the latter determination must be made in this 

case, because it contributed to a two-level increase in Cruz’s 

base offense level, it has little precedential import because the 

Sentencing Commission has recently amended the commentary to § 

3A1.1 to make clear that there is no targeting requirement. For 

the reasons that follow, we conclude that the vulnerable victim 

enhancement applies here even though the victim was only a 

passenger in the carjacked vehicle and even though the crime was 

not committed with a view to her vulnerability. We will, 

therefore, affirm the judgment of the district court.1

 

 

1Cruz also claims that he was denied the effective 

assistance of counsel at sentencing because his lawyer failed to 

object to his criminal history category. He bases his argument 

on the contention that the district court incorrectly assessed an 

additional point under U.S.S.G. § 4A1.1(e), which directs 
3

I. 

 The relevant facts are shocking and gruesome. Stated 

succinctly, Cruz, brandishing a semi-automatic pistol, entered 

the right front passenger door of the car driven by twenty-six 

year old Maribel Nunez. Twelve-year old Brenda Torres was her 

passenger. Cruz put the gun to Torres’s head, and told them to 

give him their money. After Nunez gave Cruz twenty dollars, he 

(..continued) 

sentencing courts to add criminal history points if the defendant 

committed the offense of conviction within two years of release 

from a prior sentence or while the defendant was on escape status 

from that sentence. The guideline provides: 

Add two points if the defendant committed the instant offense 

less than two years after release from confinement on 

a sentence under [§ 4A1.1(a) or § 4A1.1(b)] or 

while in imprisonment or escape status on such a 

sentence. If 2 points are added for item [§ 

 4A1.1(d)] add only 1 point. 

Past sentences of imprisonment are assigned criminal history 

points under two different provisions: if the defendant served a 

sentence of incarceration for an adult conviction, points are 

assigned under § 4A1.1(a), (b), and (c), depending on the length 

of the sentence, but if the defendant was incarcerated for a 

juvenile adjudication, points are assigned under § 4A1.2(d). 

Cruz makes the technical argument that the enhancement was based 

on the fact that he had escaped from incarceration for a juvenile 

robbery adjudication, which was counted under § 4A1.2(d), and 

that an adult conviction, which would be counted under § 4A1.1(a) 

or (b), is the necessary basis for a § 4A1.1(e) enhancement by 

the terms of the provision. This raises, on an adequate record, 

a purely legal question, cognizable on direct appeal. See United 

States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991). 

 Even though the past offense was assigned criminal 

history points under § 4A1.2(d) because it was a juvenile 

offense, rather than § 4A1.1(a) or (b), a juvenile offense can 

clearly provide the basis for a § 4A1.1(e) enhancement. Section 

4A1.2(d) requires that two points be assigned for certain 

juvenile offense and specifies that these points are added "under 

§ 4A1.1(b)." Hence, criminal history points for juvenile 

adjudications are indirectly assigned under § 4A1.1(b) and it 

would strain plain meaning to say that an additional point could 

not be added under § 4A1.1(e). See, e.g., United States v. 

Allen, 64 F.3d 411, 413 (8th Cir. 1995); United States v. Unger, 

915 F.2d 759, 763-64 (1st Cir. 1990). Cruz's agument is thus 

patently meritless. 
4

patted down Torres looking for more money to no avail. 

Threatening to kill them if they did not cooperate, he ordered 

Nunez to drive, keeping the gun pointed at Torres’s head. 

 Cruz then ordered Nunez to stop the car, and to get in 

the back seat, leaving Torres alone with him in the front seat. 

Nunez begged Cruz to leave Torres alone, and told him that "she's 

just a little girl," only twelve or thirteen years old. Cruz 

responded, "I don't care," and told Nunez "to shut up.” He then 

raped Torres. Cruz ordered Nunez and Torres to switch places, 

and then raped Nunez and forced her to perform oral sex. After 

raping Nunez, Cruz again raped Torres. 

 The episode ended when Nunez jumped out of the moving 

car onto the pavement, and Cruz eventually stopped the car and 

fled. As might be expected, there was testimony at the 

sentencing hearing as to the traumatic effect on Torres of the 

carjacking and sexual assault. Cruz admitted the carjacking but 

denied the rapes. The district court sentenced him to 240 months 

incarceration. Included in the Guidelines calculation was a twolevel upward adjustment under U.S.S.G. § 3A1.1(b) because Brenda 

Torres was a vulnerable victim. 

II. 

 The vulnerable victim enhancement, U.S.S.G. § 3A1.1(b), 

provides: 

If the defendant knew or should have known that a victim of the 

offense was unusually vulnerable due to age, physical 

or mental condition, or that a victim was particularly 

susceptible to the criminal conduct, increase by two 

levels. 

The application note to the 1995 Guidelines further provides that 
5

§ 3A1.1 "applies to offenses involving an unusually vulnerable 

victim in which the defendant knows or should have known of the 

victim's unusual vulnerability." 1995 U.S.S.G. § 3A1.1, 

commentary, application note 2.2

 Cruz contends that Torres must be a victim of the 

offense of conviction (carjacking) for the enhancement to be 

applied to him. The carjacking statute, 18 U.S.C. § 2119, 

subjects to criminal conviction anyone who 

with the intent to cause death or serious bodily injury 

takes a motor vehicle that has been transported, 

shipped, or received in interstate commerce from the 

person or presence of another by force and violence or 

by intimidation, or who attempts to do so . . . . 

Because Cruz took the automobile from the “person or presence” of 

Nunez not Torres, the argument continues, Torres cannot be the 

victim of the carjacking, and the enhancement was therefore 

impermissible. Cruz concedes that, except for the Sixth Circuit, 

all of the circuits that have considered this issue have held 

that the vulnerable victim does not have to be the victim of the 

offense of conviction. See United States v. Echevarria, 33 F.3d 

175, 180-81 (2d Cir. 1994); United States v. Bachynsky, 949 F.2d 

722, 735 (5th Cir. 1991); United States v. Callaway, 943 F.2d 29, 

31 (8th Cir. 1991); United States v. Haggard, 41 F.3d 1320, 1326 

(9th Cir. 1994); United States v. Lee, 973 F.2d 832, 833-34 (10th 

Cir. 1992); United States v. Yount, 960 F.2d 955, 957-58 (11th 

Cir. 1992). 

 

 

2While Cruz relies on the 1994 pre-amendment commentary for 

his second claim on appeal, he does not challenge the application 

of the 1995 commentary with respect to this issue. 
6

 Pointing out that the language of § 3A1.1(b) itself 

does not require that the vulnerable victim be a victim of the 

offense of conviction, these (majority) courts have reasoned that 

a sentencing court should not read § 3A1.1(b) narrowly, and thus 

may look to the defendant’s underlying conduct to determine 

whether the enhancement may be applied. Haggard, 41 F.3d at 1326 

(“[C]ourts may look beyond the four corners of the charge to the 

defendant’s underlying conduct in determining whether someone is 

a ‘vulnerable victim’ under section 3A1.1.”); Yount, 960 F.2d at 

957 (same). They have relied on § 1B1.3(a)(3), which directs the 

sentencing courts to look at “all harm” that results from the 

defendant’s conduct in determining his base offense level and 

applying relevant adjustments.3 

 Cruz instead must rely on the minority position, that 

of the Sixth Circuit in United States v. Wright, 12 F.3d 70 (6th 

Cir. 1993), the only court to have held that § 3A1.1 applies only 

if the victim is a victim of the offense of conviction. In that 

case, the court held that the language of § 3A1.1(b) itself 

requires that result. It drew on Hughey v. United States, 495 

U.S. 411 (1990), in which the Supreme Court defined “victim” for 

 

 

3Unlike the case before us, however, none of these cases, 

including the Sixth Circuit case, have considered this question 

in the context of a violent offense. These cases instead 

involved crimes such as fraud, obstruction of justice, or moneylaundering, where an institution such as a bank, the government, 

or society at large was the victim, but the enhancement was 

applied because vulnerable people (e.g., elderly people) were 

part of the conduct underlying the offense in some way (e.g., 

bank accounts, Medicare fraud). Despite this difference, we see 

no reason why we should not be guided by these cases in the 

disposition of the case at bar. 
7

purposes of the victim restitution provisions of the Victim and 

Witness Protection Act (“VWPA”) as covering only those who are 

harmed by the conduct that is the basis of the offense of 

conviction. Wright, 12 F.3d at 73. 

 The Wright court held that § 1B1.3(a)(3) does not 

provide otherwise because its commentary specifies that § 

1B1.3(a) “‘provides a rule of construction by specifying, in the 

absence of more explicit instructions in the context of a 

specific guideline, the range of conduct that is relevant to 

determining the applicable offense level . . . .’” Id. at 74 

(quoting U.S.S.G. § 1B1.3, commentary, background). Because the 

court determined that § 3A1.1(b) provided explicit instructions 

itself, it held that § 1B1.3 did not allow a court to apply § 

3A1.1 when the victim was not the victim of the offense of 

conviction. Id.

 Cruz submits that Torres, the twelve-year old, was not 

clearly a victim of the carjacking under the explicit terms of 

the carjacking statute because she was not the driver of the car. 

 By the same token, because Cruz ordered Nunez to drive while 

pointing a gun at Torres, it is arguable that Torres was a victim 

of the carjacking itself. These points are unclear, but we need 

not decide them. That is because, believing that the position 

taken by the majority of the circuits to be the better one, we 

find unpersuasive the claim that the Sixth Circuit’s 

understanding of the term “victim” was what the Sentencing 

Commission had in mind in drafting § 3A1.1. We conclude, as did 

the other courts, that neither § 3A1.1(b) nor the application 
8

note explicitly requires that we read "victim" narrowly and that, 

under § 1B1.3, we may look at all the conduct underlying the 

offense of conviction. The gruesome facts of the carjacking 

described above make it clear beyond cavil that Torres was a 

victim for purposes of § 3A1.1 under this standard. 

III. 

 Effective November 1995, the Sentencing Commission 

amended the commentary to § 3A1.1, while the text of the 

commentary itself remained the same. Cruz’s second claim on 

appeal is that he must be sentenced according to the application 

note that was in force when the crime was committed, the 1994 

version, rather than the provision in effect at the time of 

sentencing, the 1995 version. The relevant part of the 1994 

application note reads: “This adjustment applies to offenses 

where an unusually vulnerable victim is made a target of criminal 

activity by the defendant.” 1994 U.S.S.G. § 3A1.1, commentary, 

application note 1. Cruz contends that this commentary requires 

that there be evidence that Cruz targeted Torres because of her 

age, which he clearly did not, citing cases from other circuits. 

 See United States v. Smith, 39 F.3d 119, 124 (6th Cir. 1994); 

United States v. Cree, 915 F.2d 352, 353-54 (8th Cir. 1990); 

United States v. Sutherland, 955 F.2d 25, 26 (7th Cir. 1992); 

United States v. Singh, 54 F.3d 1182, 1190-91 (4th Cir. 1995). 

 The government's response is bifurcated. First, it 

contends that the cases just cited are incorrectly decided, even 

under the 1994 commentary, and that the better rule (and the one 

we should follow) is that expressed by the Second and Ninth 
9

Circuits, and most recently, the First Circuit. Pointing to the 

text of the guideline itself, which the Commission has not 

amended and which provides that the enhancement is required if 

the defendant “knew or should have known” of the victim’s 

vulnerability, these circuits have concluded that a targeting 

requirement would be inconsistent with this language. 

 In United States v. Hershkowitz, 968 F.2d 1503 (2d Cir. 

1992), for example, a detainee was assaulted by a prison guard 

while the other guards failed to intervene. The Second Circuit 

there affirmed the two-level increase due to the victim's 

vulnerability under the circumstances, relying on the language of 

the guideline itself to reject the defendant's contention that 

the enhancement should not apply because he had not 

"’specifically sought out’ the victim." Id. at 1506. The Ninth 

Circuit has consistently used this approach, holding that the 

government must only show that the defendant had actual or 

constructive knowledge of the victim’s vulnerability, see United 

States v. O'Brien, 50 F.3d 751, 755 (9th Cir. 1995); United 

States v. White, 974 F.2d 1135, 1140 (9th Cir. 1992); see also

United States v. Caterino, 957 F.2d 681, 683 (9th Cir.), cert. 

denied, 506 U.S. 843 (1992); United States v. Boise, 916 F.2d 

497, 506 (9th Cir. 1990), and the First Circuit has recently 

followed suit, holding in a post-amendment case that the preamendment guideline did not contain a targeting requirement, 

United States v. Gill, 99 F.3d 484, 488 (1st Cir. 1996).4

 

 

4The Gill opinion clarified First Circuit law on this issue, 

and specifically noted that United States v. Rowe, 999 F.2d 14, 

16-17 (1st Cir. 1993), which contained some confusing language, 
10

 Second, the government points out that there is no 

targeting requirement applicable to Cruz's sentence because the 

Sentencing Commission, effective November 1, 1995, amended the 

commentary to § 3A1.1 to clarify the application of the 

guideline. The commentary on which Cruz relies and which was in 

effect on December 8, 1994, the date of the carjacking, stated in 

full: 

This adjustment applies to offenses where an unusually vulnerable 

victim is made a target of criminal activity by the 

defendant. The adjustment would apply, for example, in 

a fraud case where the defendant marketed an 

ineffective cancer cure or in a robbery where the 

defendant selected a handicapped victim. But it would 

not apply in a case where the defendant sold fraudulent 

securities by mail to the general public and one of the 

victims happened to be senile. Similarly, for example, 

a bank teller is not an unusually vulnerable victim 

solely by virtue of the teller's position in a bank. 

1994 U.S.S.G. § 3A1.1, commentary, application note 1 (emphasis 

added). 

 In its November 1, 1995 clarification, the Commission 

deleted the first sentence of the pre-November 1, 1995 

commentary, including the reference to "target," and replaced it 

with: “Subsection (b) applies to offenses involving an unusually 

vulnerable victim in which the defendant knows or should have 

known of the victim's unusual vulnerability.” 1995 U.S.S.G. § 

3A1.1., commentary, application note 2. In amending the 

guideline as such, the Commission explained: 

Although the Commission found that the current guidelines 

generally provided adequate penalties in these cases, 

it noted some inconsistency in the application of § 

3A1.1 regarding whether this adjustment required proof 

(..continued) 

did not hold that § 3A1.1 had a targeting requirement. Gill, 99 

F.3d at 487. 
11

that the defendant has "targeted the victim on account 

of the victim's vulnerability." This amendment revised 

the Commentary to § 3A1.1 to clarify application with 

respect to this issue. 

U.S.S.G. Appendix C, Amendment 521, at 429-30. 

 Thus, explicitly noting that there had been some 

"inconsistency" in the application of § 3A1.1(b), the Commission 

clarified that inconsistency by deleting the reference to 

"target." After the amendment to the commentary, the only 

requirement for applying the two-level enhancement is that the 

defendant knew or should have known of the victim's 

vulnerability. See United States v. Feldman, 83 F.3d 9, 16 (1st 

Cir. 1996). 

 If Cruz would fare worse under the amended guideline 

than the one in effect at the time of his offense, ex post facto

considerations would prevent us from applying the amendment. See

United States v. Kopp, 951 F.2d 521, 526 (3d Cir. 1991) (holding 

that while defendants are generally sentenced under the 

Guidelines in effect at the time of sentencing, the Guidelines in 

effect at the time of the commission of the offense govern if 

they result in a less severe penalty); see also United States v. 

Stover, 93 F.3d 1379, 1386 (8th Cir. 1996) (applying targeting 

requirement even after amendment to the commentary because of an 

ex post facto concern). Of course, if we were to follow the 

precedent in the First, Second, and Ninth Circuits, whose case 

law conforms with the amendment, there would be no ex post facto

problem. We do so here. 

 There is no Third Circuit case law interpreting the 
12

1994 application note, and we cannot consider the Sentencing 

Commission’s clarification of the application note to resolve how 

the Third Circuit would have interpreted it. See United States 

v. Menon, 24 F.3d 550, 567 (3d Cir. 1994); United States v. 

Bertoli, 40 F.3d 1384, 1407 & n.21 (3d Cir. 1994).5 We simply 

find the cases holding that there was no targeting requirement 

under the 1994 guideline to be more persuasive. More 

specifically, the purpose of § 3A1.1, as we see it, is simply to 

acknowledge that, while most crimes are committed for other 

motives, in many instances defendants know or should know of 

their victim's particular vulnerability and are therefore more 

blameworthy for knowingly or even negligently harming them. 

 The text of the guideline itself, see supra p. 5, which 

was not amended in 1995, directs that it be applied in any case 

where the defendant “knew or should have known” of the victim's 

 

 

5Arguably, our decisions in United States v. Astorri, 923 

F.2d 1052 (3d Cir. 1991), and United States v. Seligsohn, 981 

F.2d 1418 (3d Cir. 1992), are in accord with the First, Second, 

and Ninth Circuit views. At the least, they are not inconsistent 

with them. 

 In Astorri, this Court approved the vulnerable victim 

enhancement where a corrupt broker took advantage of his 

girlfriend's parents. To reach this holding, we upheld the 

district court’s finding that the parents were vulnerable, 923 

F.2d at 1055, without mentioning any requirement that Astorri 

have targeted his girlfriend’s parents because of their 

vulnerability. 

 Similarly, in Seligsohn, this Court affirmed an upward 

departure where the defendants defrauded elderly victims by 

selling unnecessary roofing repairs at excessive prices. The 

district court enhanced the sentence of the lead defendant 

because the elderly victims were vulnerable due to their age, and 

this Court affirmed without mentioning a targeting requirement. 

981 F.2d at 1426 (“There was adequate evidence in the record to 

sustain a finding that the defendants preyed on those 

particularly vulnerable individuals.”). 
13

susceptibility. We agree with the Hershkowitz court that: 

[b]y its own terms, § 3A1.1 governs cases in which the defendant 

“knew or should have known” of the victim's unusual 

vulnerability. It is of no consequence therefore 

whether Hershkowitz actually was conscious of 

Campbell's increased vulnerability when he assaulted 

 him in the corridor and later in the holding cell. 

Id. at 1506. We conclude that, if we were to hold that the 1994 

commentary to the guideline required a finding of targeting, we 

would undermine the plain language of § 3A1.1 and impose a higher 

level of scienter than is required by the provision. See Stinson 

v. United States, 113 S. Ct. 1913, 1918 (1993) ("If . . . the 

commentary and the guideline it interprets are inconsistent in 

that following one will result in violating the dictates of the 

other, the Sentencing Reform Act itself commands compliance with 

the guideline."). Moreover, we are not persuaded that the 1994 

commentary is to the contrary as it, too, does not require that 

the defendant targeted the victim because of his or her 

vulnerability. 1994 U.S.S.G. § 3A1.1, commentary, application 

note 1 (applies where a vulnerable victim is “made a target of 

criminal activity by the defendant” and does not require that the 

victim be targeted because of his or her vulnerability). 

 In sum, the argument that the enhancement can be 

assessed only where a defendant purposefully targets a victim 

because of his or her vulnerability cannot be reconciled with the 

plain language of § 3A1.1 that there should be an enhancement 

even in cases where the defendant does not have actual knowledge 

of the vulnerability. The facts here surely meet the applicable 

standard. Cruz at the very least should have known of the 
14

twelve-year old Torres's vulnerability. The vulnerable victim 

enhancement was therefore properly applied. 

IV. 

 The judgment of the sentence will be affirmed.6

 

 

6Cruz's alternative argument that the rule of lenity 

requires resentencing is without merit. The rule of lenity "is 

always reserved . . . for those situations in which a reasonable 

doubt persists about a statute's intended scope even after resort 

to 'the language and structure, legislative history, and 

motivating policies' of the statute." Moskal v. United States, 

498 U.S. 103, 108 (1990); accord United States v. Bass, 404 U.S. 

336, 347 (1971) (reliance on the rule of lenity should occur only 

if "[a]fter 'seiz[ing] every thing from which aid can be 

derived,'" a court is left with an ambiguous statute). Given the 

plain meaning of § 3A1.1(b) and its commentary, the rule of 

lenity is inapplicable.